Trump’s Plan Flops in Senate--Despite Bizarre DHS Press Release

Efforts to protect the younger immigrants known as Dreamers collapsed in the Senate today as three competing amendments failed to get the 60 votes needed to avoid a filibuster. President Trump had made it clear that he would veto two bipartisan compromise amendments if they passed, and predictably these both failed—the McCain-Coons amendment 52-47 and the Schumer-Rounds-Collins amendment 54-45. But the biggest failure was the Grassley amendment, which incorporated the White House’s own restrictionist positions. This went down in a 39-60 vote, with 10 Republican senators opposing their president’s plan.

After today’s impasse in the Senate it seems unlikely that the political class will produce any legislation to protect the Dreamers from deportation, much less any rational reform of the immigration system.

DHS head Kirstjen Nielsen. Photo: AP/Alex Brandon

Earlier in the day the Department of Homeland Security (DHS) made an unusual move for a government agency: it issued a press release ferociously attacking the Schumer-Rounds-Collins amendment.

“The DHS press release is over the top,” Senator Lindsey Graham (R-SC) responded. “It’s poisonous. I think it’s ridiculous, and I’ve long since stopped paying attention to them.” But we should pay attention, because the DHS release shows a lot about the dishonest and authoritarian thinking of the people who enforce U.S. immigration laws.

Here is a sampling of what makes the release “poisonous” and “ridiculous.”

DHS misrepresents provisions on enforcement. DHS claims the amendment has a “ ‘priorities’ scheme that ensures that DHS can only remove criminal aliens, national security threats and those who arrive AFTER June 30, 2018 creating a massive surge at the border for the next four months” [punctuation in the original].

In reality, the text of the compromise amendment requires the DHS to “prioritize available enforcement resources” to immigrants convicted of several categories of crimes and to undocumented immigrants who arrive here after June 2018. In other words, it doesn’t stop detentions and deportations of non-criminal immigrants; it just deprioritizes them, codifying the policy in place during the last years of the Obama administration. Thousands of non-criminal immigrants were deported then—and no, there wasn’t “a massive surge at the border.”

DHS makes outlandish claims about “chain migration.” The press release says Dreamers granted legal status by the bipartisan amendment “would then be able to bring over all of extended families through chain migration, who in turn could bring in their foreign relatives, potentially increasing the legalized population of aliens to 10 million.”

The claim here is that since naturalized citizens sponsor an average of 3.5 relatives for immigration visas, 2 or 3 million newly legalized Dreamers would eventually sponsor another 7 to 10 million relatives. But what relatives would they sponsor? The amendment bars Dreamers from sponsoring their parents for citizenship. Couldn’t they sponsor their children or siblings? Of course, but remember that by definition the Dreamers have lived here since childhood. Their siblings would probably be either citizens or Dreamers themselves, and the Dreamers’ own children would almost all be natural-born U.S. citizens. So the Dreamers would have very few relatives they could sponsor, certainly not 7 to 10 million.

When the Congressional Budget Office (CBO) analyzed a more generous DREAM Act in December, it estimated that the legalized Dreamers would only end up sponsoring about 80,000 relatives by the end of the first 10 years.

DHS claims the amendment leaves “loopholes” that “create a dramatic pull factor for illegal immigration.”

These aren’t “loopholes,” and there’s no evidence they produce a significant pull factor. One is the bipartisan William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. It is true that tens of thousands of unaccompanied children fleeing violence in Central America have used protections from this legislation to enter the U.S. as asylum seekers, but these numbers are hardly dramatic, at least compared to the levels of undocumented immigration in the 1990s and early 2000s, or to the 300,000 U.S. citizens who migrated from Puerto Rico to Florida—one state—after Hurricane Maria struck the island last fall.

Ironically, immigration officials claimed in the past that Obama’s Deferred Arrival for Childhood Arrivals (DACA) was the “pull factor” behind the surge of unaccompanied minors in 2014; as recently as last September Attorney General Jeff Sessions used this claim as one of the pretexts for ending DACA. Now that DACA is ending, the administration finally admits that the cause was actually the 2008 child trafficking law.

Another “loophole,” according to DHS, is actually a Supreme Court decision from 2001. The DHS didn’t explain how it expected Congress to overturn a ruling by the country’s highest court.

The decision is Zadvydas v. Davis. The Court ruled that the government couldn’t hold deportable immigrants in indefinite administrative detention just because the government couldn’t find a country to deport them to. The government was instructed to release the detainees after six months if it hadn’t made reasonable progress in efforts to deport them; there was an exception for especially dangerous detainees.

The DHS claim about Zadvydas is actually rather frightening. The decision was based on what the Court called “serious constitutional questions” about indefinite detention for administrative purposes. The Court had ruled in 1987 that “government detention violates [the Fifth Amendment’s Due Process Clause] unless the detention is ordered in a criminal proceeding with adequate procedural protections.”

So our current DHS officials are seeking to change a ruling based on the Fifth Amendment’s Due Process Clause? And if they could detain immigrants indefinitely without criminal charges, couldn’t they do that to citizens as well?