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WASHINGTON — When President Joe Biden took office and Democrats took control of Congress, several Texas lawmakers had hoped this would be their shot to codify protections for migrants who came to the country illegally as children under Deferred Action for Childhood Arrivals. But with only three weeks left in the legislative session in which Democrats have control of both chambers, they still don’t have a deal.
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Over 100,000 DACA recipients live in Texas, and their status in the United States continues to be subject to legal challenges, including from the state of Texas itself. But the Texas Republicans who were previously open to a DACA deal say time is running out, and the state’s Democrats fear no progress will be made in the next legislative session when Republicans will have control of the U.S. House. The interest from the state’s Republicans to work out a deal on DACA is also quickly waning in favor of legislation to harden border security.
“This is like now or never for ‘Dreamers,’” said Rep. Sylvia Garcia, D-Houston. “I mean, they are hanging by the thread.”
Sen. John Cornyn, a key Senate Republican who had expressed early interest in passing a deal, said last week that he was now doubtful a deal will be able to get across the finish line in time. The House and Senate still need to pass a massive bill to keep the government funded by the end of the year — a critical priority occupying most of the legislative spotlight this month.
“Leaving all this in the last few days before the omnibus [appropriations package] is just impractical,” Cornyn told reporters. DACA legislation “is a very, very heavy lift. It’s unlikely to happen before the end of the year, and even next year it’s going to be very hard.”
The House passed the American Dream and Promise Act in March 2021, which would allow DACA recipients — or “Dreamers,” based on never-passed proposals in Congress called the DREAM Act — to apply for permanent residency and end the legal limbo that has repeatedly jeopardized their ability to stay in the United States. The program’s legality has faced legal challenges since its inception, with critics saying then-President Barack Obama didn’t have the authority to create such a sweeping program without Congress’ approval. Challenges in federal court appear to be leaning in the critics’ favor, with a federal appeals court blocking future applicants for the program last fall though it can continue for the time being.
Senate Judiciary Chair Dick Durbin, D-Illinois, also introduced his own version of the DREAM Act in 2021 and appeared optimistic of its prospects in November. Durbin said he had at least four Republicans in mind who could support DACA legislation. He would need 10 to overcome the filibuster and vote it into law.
Cornyn showed some early support for a DACA deal with Sen. Thom Tillis, R-North Carolina. Both are members of the Senate Judiciary Committee, which has jurisdiction over DACA. The two felt DACA was unlawful but recognized the logistical and humanitarian fallout that would result from a complete cancellation of the program and proposed an alternative plan that would offer protection only for active DACA recipients but wouldn’t expand the program to new applicants.
Since Obama introduced DACA in 2012, many DACA recipients have grown up and started families of their own. They have gone to college, entered the workforce and contributed to the country’s economy.
“We’re in a very inflationary situation, so the taking of 100,000 workers and people who are going to colleges and universities out of the workforce for a state like Texas that is booming would have very serious economic consequences,” said Glenn Hamer, president and CEO of Texas Association of Business.
But the Cornyn-Tillis plan never went through the legislative committee process to go to the floor. The last two years of Democrats’ legislative agenda was largely focused on passing Biden’s infrastructure, social program and climate agenda — a gargantuan to-do list passed through fierce negotiating that at times brought the party to the brink of an existential crisis. Immigration was pushed to the backburner.
Democrats were also widely bracing to have their ranks thinned in this year’s midterm elections, with Biden facing low approval ratings and the president’s party traditionally losing control of Congress in his first midterm elections. Democrats needed to show voters they could deliver on their legislative agenda, and a pathway to legal status was a step too far for conservative Democrats on their massive social spending package, to the chagrin of more progressive members.
Democrats ended up performing much better in November than expected, keeping control of the Senate and losing their House majority by only an eight-seat margin. With the election out of the way, Durbin came out in earnest to talk about a DACA deal in November.
“I’m prepared to sit down with any Republican in the Senate who wants to talk about this issue,” Durbin said at a news conference last month. “I’m inviting some in. We’re talking privately, we’re meeting and drawing our people together. We have to make sure that this is a high priority this month of December.”
Tillis and Sen. Kyrsten Sinema, the former Arizona Democrat who last week left her party to be an independent, struck a rough deal that would provide a pathway to citizenship for 2 million immigrants who came into the country illegally as children, The Washington Post reported earlier this month. It would also target several Republican priorities such as added resources to speed up asylum processing, faster removal for migrants who don’t have credible asylum claims and a one-year maximum continuation of Title 42, which turned back migrants under the guise of trying to curb the spread of COVID-19. It would also provide more funding for Border Patrol. The points mirror many of the proposals in Tillis’ earlier agreement with Cornyn.
Texas House Democrats were keen to chime in on the proposal as its contours are still being worked out, particularly since they had been mulling similar ideas for increasing border infrastructure funding. U.S. Rep. Henry Cuellar, D-Laredo, spoke with Sinema on Wednesday about the bill, though it is still in its early stages and the details remain in flux. Cuellar, Sinema and West Virginia’s Sen. Joe Manchin enjoy a close personal relationship as centrists unafraid to stick it to party leadership and work across the aisle.
But most Texas members have yet to see anything or have substantive discussions with Sinema on the bill. Cornyn said he hasn’t seen the plan. Rep. Veronica Escobar, D-El Paso, has reached out since October to the senator, but has so far not been able to schedule a meeting with her or her team.
“There are folks like me willing to make compromises and who bring new ideas to the table that would help agents, communities and migrants as well,” Escobar said. “I wish we had a seat at that table.”
Hannah Hurley, a spokesperson for Sinema, said the senator and her team “are working with leaders from border states on both sides of the aisle.”
The year-end government funding package is another avenue for increased funding for Border Patrol. Rep. Kay Granger, R-Fort Worth, is the top Republican appropriator in the House and said she was determined to ensure there was enough funding for Border Patrol in the spending package.
But she and other Texas House Republicans say the border must be fully secured from illegal crossings before they can do serious work on a DACA deal. Republicans assert the true humanitarian crisis is human trafficking at the border, which they argue has increased because of the Biden administration’s reversal of Trump-era immigration policies.
“I’'l make sure we have the funds but we’ve added more funds and more funds and more funds, but it isn’t stopping what’s going on and it’s a tragedy,” Granger said.
Almost the entire Republican delegation unveiled a framework on border security Thursday that would invest in physical border infrastructure including a wall and patrol roads, require Border Patrol to turn away migrants without credible asylum claims and increase penalties for violating immigration laws. It would also reinstate one of the Trump administration’s more controversial immigration policies that required asylum-seekers to wait out their cases in Mexico. Biden overturned that policy shortly after taking office.
Rep. Chip Roy, R-Austin, one of the most conservative members of the Texas delegation, spearheaded the effort with the backing of all the state’s Republican members. The proposal wouldn’t be considered until next year when Republicans take control of the House and hold the levers on committee hearings and the legislative process. Roy guffawed at the idea of passing immigration or border security legislation before the end of the current legislative session.
“Oh, hell no,” Roy said.
Roy is a vocal critic of the procedural quirks that allow lawmakers to pass legislation outside of regular order and insisted any major bill on immigration or border security would have to go through committee hearings, debate and a vote on the floor. Given the long timelines that often entails, that in all likelihood means no DACA deal before the end of the session.
And unlike Democrats, Republicans are making it clear that immigration and border security will be top of the agenda when they take over. Border security, along with gas prices, has been among Republicans’ favorite attack points on Democrats and the administration since Biden first took office. Republicans accused the administration of being asleep at the wheel as a record number of migrants are apprehended at the border and they have demanded Biden visit the border for himself.
Republicans vow to launch investigations into Homeland Security Secretary Alejandro Mayorkas, dangling the prospect of impeachment overhead. Rep. Dan Crenshaw, R-Houston, is a top contender to lead the House Homeland Security Committee and would have a major role in any investigation of Mayorkas. Crenshaw said he has a long list of transition staffers he would want to probe, but stopped short of calling for impeachment without first conducting hearings.
Mayorkas has recently traveled to Latin America to negotiate with his counterparts on addressing migration and cross-border crime and will be visiting the border in El Paso on Tuesday. Mayorkas has made no indication of stepping down from his post.
But despite earlier interest from Senate Republicans in DACA legislation, it does not appear high on the party’s immigration list for the next year. During a Senate Judiciary hearing last month, Cornyn told Durbin that “the border is on fire and the American people are irate and entirely justified in being irate by this self-inflicted border crisis due to the inaction of the Biden administration. I just don’t see a path forward at this time” on DACA.
Rep. Mayra Flores, whose short time in office ends in early January, said Democrats blew their chance to pass meaningful DACA legislation in the two years they had control of both chambers and the presidency.
“Y’all keep using this issue with Hispanics just to get our support, just to get our vote. You’ve done nothing,” Flores said. “You’ve had an opportunity to do something about DACA and you’ve done nothing.”
Democrats, however, rebuffed the Republican proposal as tired policies that have been proven not to work. Escobar, who has also called for more funding for border processing infrastructure, said the Republican plan would cause overcrowding at detention centers and “create inhumane conditions for children” by going after the Flores settlement agreement, which limits the detention of migrant minors. And Escobar didn’t express much hope for a serious Republican proposal for DACA in the House in the next year, underscoring the need to pass legislation before Jan. 3.
Still, Cuellar didn’t give up hope on a deal between Senate negotiators, whether it be the Sinema-Tillis deal or something else. Even if there are only a few weeks left in the legislative calendar, Cuellar said protections for DACA recipients was sensible and urgent enough to have a chance of success.
“I’ve seen Congress move pretty fast,” Cuellar said. “If there’s an agreement, it can be done in one day.”
Disclosure: Texas Association of Business has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.