Reps. John Katko (R-N.Y.) and Henry Cuellar (D-Texas) have proven that it is possible to get strong bipartisan support for an immigration bill, despite the fact the parties are farther apart ideologically now than at any time in the past 50 years: Their Shadow Wolves Enhancement Act, H.R. 5681, passed on March 8, 2022, with 387 yeas and only 33 nays.
Compare the exceptional degree of bipartisanship they achieved to the almost total lack of bipartisanship in the passage last year of Representative Lucille Roybal-Allard’s (D-Calif.) American Dream and Promise Act, H.R. 6, with 228 yeas and 197 nays. Every Democrat voted yea, but only nine Republicans joined them. The rest of the Republicans opposed it.
One obvious difference is that Katko had bipartisan cosponsors and Roybal-Allard’s cosponsors were all Democrats. It helps to have members of both parties at the table when the provisions of a bill are being discussed.
But obviously there was more to it than bipartisan co-sponsorship.
Shadow Wolves Enhancement Act
In 1974, Congress issued a mandate to establish a Native American task force to stop rampant human and drug smuggling across the Sonoran desert that runs through the Tohono O’odham Nation’s reservation. The Nation has a 76-mile stretch of land on the border with Mexico.
The task force was started with 25 tribal members who became known as the “Shadow Wolves” because they hunt smugglers like a pack of wolves. Their extraordinary tracking skills have made them a key component of the High Intensity Drug Trafficking Area initiative, which was established by the Anti-Drug Abuse Act of 1988.
According to Katko, limitations on pay and upward mobility have made it difficult to retain and recruit officers for this task force. His bill will facilitate long-term viability of the Shadow Wolves by allowing its officers to be reclassified as special agents with higher pay and more authority to patrol, investigate, and interdict illicit activities.
It also would require ICE to develop a strategy for expanding the Native American task force program to other appropriate areas in the vicinity of our land borders with Mexico and Canada.
American Dream and Promise Act
On the other hand, Roybal-Allard’s American Dream and Promise Act includes a “Dream Act” which would permit undocumented immigrants to apply for lawful permanent resident status if they arrived in the United States before their 19th birthday and before Jan. 1, 2021. They would have to complete a ten-year period of conditional permanent residence first, however.
It also includes a “Promise Act,” which would provide a legalization program for undocumented immigrants who had or were eligible for Temporary Protected Status (TPS) as of Jan. 1, 2017, or for Deferred Enforced Departure (DED) as of Jan. 20, 2021.
Key differences
The bipartisan Shadow Wolves bill is not controversial. The objective of the bill is to ensure the long-term viability of the Shadow Wolves task force, and it has the unanimous backing of the Nation’s Legislative Council.
The American Dream and Promise Act is very different. It didn’t have any Republican cosponsors and its objective is to establish major legalization programs, which hasn’t happened since the enactment of the Immigration Reform and Control Act (IRCA) of 1986.
This doesn’t mean, however, that a DREAM Act cannot be enacted. Republicans have acknowledged the legitimacy of a legalization program for undocumented immigrants who were brought here as children.
But they will oppose any major legalization bill that does not include effective border security and interior enforcement measures to reduce illegal immigration. They want to prevent a new group of undocumented immigrants from taking the place of the ones being legalized.
The Migration Policy Institute has estimated that Roybal-Allard’s bill would make legalization available to approximately 4.4 million undocumented immigrants. And she did not include the border security and immigration enforcement measures the Republicans want as a condition for supporting such a large legalization program.
According to Sen. John Cornyn (R-Texas), Roybal-Allard’s bill has “zero chance of being passed by the Senate.”
Alternative
The obvious solution for Roybal-Allard’s bill is to work with the Republicans on adding the border security and immigration enforcement measures they want, but the Democrats have not included meaningful border security or immigration enforcement provisions in any of their legalization bills.
Consequently, if the Democrats really want to establish a legalization program, it will have to be a small one. And they can do this by making the following changes in Roybal-Allard’s bill.
First, remove the TPS and the DED legalization provisions.
Second, to reduce the number of legalizations and make the program as attractive as possible to the Republicans, eligibility should be limited to DREAMers who were brought here when they were very young. America is the only home they have known. Their situation is far worse than that of immigrants who were in their late teen years when they left their country of origin.
Third, the bill also should prevent those children from conferring immigration benefits on the parents who brought them here. The appeal of a DREAM Act is that the children it would legalize are innocent of any wrongdoing, which cannot be said of the parents who brought them: They knowingly violated our immigration laws.
This can be accomplished by making the DREAMers eligible for legalization through the Special Immigrant Juvenile (SIJ) program, a little-known humanitarian program that makes permanent resident status available to undocumented immigrant children in the United States who have been abused, abandoned, or neglected by one or both parents and who should not be returned to their own countries. This currently does not apply to DREAMers, but the SIJ provisions could be modified to include them in the program.
The statutory provision that established the SIJ program, INA §101(a)(27)(J)(iii)(II), states that, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”
These changes would make the DREAM Act more acceptable to Republicans — but they also might make it unacceptable to some Democrats.
Realistically though, the Democrats aren’t likely ever to get the DREAM Act they want. They have tried more than 11 versions already since the first one was introduced in 2001, and they haven’t been able to get any of them enacted.
Democrats should be ready by now to make the compromises needed to help as many DREAMers as possible.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.