In a bid to protect millions of undocumented immigrants from deportation, Sen. Kamala Harris is proposing a slate of executive actions that would expand President Obama’s deferral program for dreamers and help some young undocumented immigrants get a path to citizenship.
The presidential contender’s plan would represent an expansion of executive power on an issue that Congress has repeatedly failed to come to agreement on, even as polls show broad bipartisan support for protecting dreamers. While Harris says she wants to see Congress pass comprehensive immigration reform, she argues that the next president needs to take action quickly.
“Dreamers cannot afford to sit around and wait for Congress to get its act together. Their lives are on the line,” Harris said in a statement. “These young people are just as American as I am, and they deserve a president who will fight for them from day one.”
President Trump has moved to end Obama’s Deferred Action for Childhood Arrivals program, which Obama put in place to give work authorization and block deportation for young undocumented immigrants who were brought into the U.S. as children. But the program has been preserved by court decisions after lawsuits from California and other states. Those decisions could go before the Supreme Court, which is expected to discuss the Trump administration’s challenge to them at a closed-door conference this week.
Harris’ plan would reverse Trump’s directive and expand the eligibility for DACA. It would eliminate the requirement that dreamers apply before they turn 31, raise the age limit for when they arrived from under 15 years to under 17 years, allow younger kids under 15 to apply with parental or guardian consent, and increase the two-year term of DACA protection to three years.
Parents of U.S. citizens and legal permanent residents would also be able to apply for deportation protection if they pass a background check and have lived in the country for a certain number of years. The program would also be open to “other law-abiding immigrants with ties to their communities and will consider factors such as service in the military, extended residence in the United States, and whether an individual has deferred action-beneficiary children, spouses, or parents,” a campaign source said. In all, her campaign estimates it would protect 6 million undocumented immigrants.
The plan also includes a novel legal strategy to create a path to legal permanent residence and citizenship for some dreamers who would be eligible on family- or employment-based grounds if they weren’t already undocumented.
Currently, dreamers who want to become legal residents face a number of hurdles, even if they are married to a U.S. citizen or have an employer who is willing to sponsor them. For example, immigrants must have been “lawfully admitted or paroled” into the U.S., must have maintained continuously lawful status in the country and must not have worked illegally at any time.
Harris’ proposal would find workarounds for those hurdles that are already written into current immigration law. She would create a “parole-in-place” program for dreamers, allowing them to stay in the U.S. to change their immigration status instead of having to leave. A similar program exists now for undocumented family members of U.S. military service members.
Harris would also issue a rule clarifying that an exception written into immigration law for undocumented people who lost their legal status “through no fault of their own” applies to immigrants brought to the U.S. as children. And she would allow dreamers who’ve worked in the country illegally to apply for retroactive work authorization from the secretary of homeland security — who already has the ability to grant work authorization under current law.
Many dreamers also face a three- or 10-year ban on re-entering the country after they leave. Immigration law lets the secretary waive those bans in cases of “extreme hardship,” and Harris would clarify that separation from a “close family member” would lead to a presumption of extreme hardship.
“It’s very wonky but very creative,” said David Leopold, the former president of the American Immigration Lawyers Association, who helped consult on the plan. “This is the first time I’ve ever seen anybody with the guts to use the immigration law in this way.”
Obama’s plan to defer deportation for parents of young undocumented immigrants was blocked in the courts, with an appeals court ruling that it exceeded the president’s authority. The Supreme Court, which then had only eight justices, deadlocked on the issue.
Harris’ supporters hope that she can avoid that fate — even after Trump has appointed dozens of new conservative federal judges — by emphasizing that the relief she grants dreamers would be awarded on a case-by-case basis that they would have to apply for.
“There are going to be people who say ‘Senator Harris has no right to grant green cards to all these people,'” said Stephen Legomsky, a former chief counsel at USCIS under the Obama administration and a professor at Washington University law school. “It’s important to emphasize that the only people who get green cards in this proposal are those who already meet the requirements Congress put in place, except for technical barriers this proposal would help them overcome.”
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