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Immigration Protections in Biden’s Social Policy Bill Face a New Test in the Senate

U.S. House Democrats and advocates are pressing the evenly divided Senate to expand immigration protections in the Build Back Better Act. Photo by jzajic/

Nearly 100 U.S. House Democrats are pushing the Senate to expand immigration protections in President Joe Biden’s massive social spending and climate bill, and advocates say that it may be a last opportunity for years to advance any reform.

The letter to Senate Majority Leader Chuck Schumer of New York and the chair of the Judiciary Committee, Dick Durbin of Illinois, urges the Senate to include in its version a pathway to citizenship for undocumented people — something the Senate parliamentarian already has rejected twice in the bill, known as the Build Back Better Act.

The House didn’t include a pathway to citizenship either, but the House Democrats urged the Senate to act.

“We now write to urge you and the rest of our colleagues in the Senate to reinstate a pathway to citizenship for Dreamers, TPS [temporary protected status] holders, farm workers, and essential workers in the Senate’s version of the reconciliation bill,” says the letter led by Rep. Alexandria Ocasio-Cortez, (D-N.Y.), and 90 other House Democrats, including Maryland Rep. Jamie Raskin.

The House’s version of Build Back Better, which passed last week, includes temporary work and deportation protections through a parole program that allows some undocumented people to change their status to prevent deportation.

Those immigration provisions in the House bill now are under review by the Senate parliamentarian, Elizabeth MacDonough, who is nonpartisan and provides advice and help on Senate rules and procedures.

The situation is complicated because Build Back Better is being considered under a process known as reconciliation so that only a simple majority vote is required in the evenly split Senate.

But it also means that the bill must relate to matters that affect spending, revenues, the deficit or the debt limit.

Senate Democrats already have tried to provide the Senate Judiciary Committee with $107 billion for “lawful permanent status for qualified immigrants” through the reconciliation bill, but the Senate parliamentarian turned it down.

The House members argue that “the  role  of  the  Parliamentarian  is  an advisory  one,  and  the  Parliamentarian’s  opinion  is  not  binding.”

“We  cannot  let  an unelected  advisor  determine  which  promises  we  fulfill  and  which  we  do  not,  especially  when  the  vast majority  of  Americans —  in both parties — want  us  to  provide  a  pathway  to  citizenship,” they wrote.

While it is not unprecedented for a parliamentarian to be overruled, it is rare — though it has occurred as recently as 2013, when Democrats overruled MacDonough to end the filibuster for presidential nominees, according to Governing magazine.

When MacDonough ruled against Democrats’ plans to include a minimum wage increase in a coronavirus relief bill earlier this year, the decision was met with intense disappointment but accepted by most lawmakers. Rep. Ilhan Omar, a Minnesota Democrat, called for the parliamentarian to be replaced.

‘An urgency right now’

Many advocates and Democrats have expressed frustration at a lack of a pathway to citizenship in Build Back Better.

Juliana Macedo do Nascimento, the state and local policy manager for United We Dream, an immigrant advocacy group, said that Democrats have the opportunity to pass bold immigration reform, the most historic in 35 years, by creating a pathway to citizenship.

She added that the Deferred Action for Childhood Arrivals program, of which she is a recipient, is still in the courts and could be eliminated by next year. It is unclear if Democrats will keep their majority in the House and Senate come the 2024 midterm elections.

“There is an urgency right now for Democrats to deliver on citizenship because this is our window,” she said. “We know that our people deserve better, and we were promised a lot more, and Democrats have to deliver on those promises.”

Macedo do Nascimento said she and other immigration advocacy groups were disappointed in what the House passed, because the House does not have the same rule constraints as the Senate and members could have included a pathway to citizenship in their version of the bill.

“We are really disappointed and disheartened by the lack of courage and boldness,” she said. “It doesn’t bode well what will happen in the Senate if the House is so constrained.”

Still, Macedo do Nascimento added that if the Senate accepts the House’s immigration language, it would be the biggest immigration reform in 35 years, since a law signed by the late President Ronald Reagan.

“We have to live with those two truths,” she said. “It’s not enough, and it’s not what we deserve, and it’s not what we were promised.”

If the House’s provision is approved by the Senate, it would allow undocumented people who have been in the U.S. since before 2011 to have up to 10 years of work authorization, which about 6.5 million undocumented people would benefit from, according to a report from the Congressional Budget Office.

The work and deportation protections would last for five years and could be renewed until the program expires, which is in 2031.

Alejandra Gomez, the co-executive director from Living United for Change in Arizona, said in a statement that while Build Back Better is historic, it still falls short. She called on Arizona Sens. Mark Kelly and Kyrsten Sinema, both Democrats, to push for a pathway to citizenship in the Senate.

“Democrats in the Senate have a big opportunity to deliver on immigration by ignoring the parliamentarian’s opinion and move forward with the parole program,” Gomez said. “The failure to pass BBB with the parole program would not only have dire political consequences, but it would also leave millions of immigrant families in the shadows, and in severe danger from further persecution from ICE and the Border Patrol.”

The House also allocated a separate $100 billion in Build Back Better that would help reduce backlogs, expand legal representation and help with processing at the border.

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Immigration Protections in Biden’s Social Policy Bill Face a New Test in the Senate