Democrats under pressure to act alone on immigration if Senate Republicans don’t sign on

Immigration reform advocates are ramping up pressure on Democrats to have a plan in place to pass legislation on their own later this year, if Senate Republicans oppose several measures working through Congress that would offer legal protections to millions of undocumented immigrants.

The House passed two bipartisan immigration measures Thursday. One bill would offer young undocumented immigrants known as “Dreamers” a pathway to citizenship, and extend longer term protections to immigrants eligible for Temporary Protected Status, or TPS. The other would give farm workers stronger legal protections and the opportunity to apply for a green card.

Democrats are holding out hope those bills can attract enough Republican votes to pass in the Senate, and create momentum for both parties to strike a deal on a comprehensive immigration reform bill proposed by President Joe Biden that would offer a pathway to citizenship to the roughly 11 million undocumented immigrants living in the United States.

House Democrats plan to take up Biden’s plan next month, and are considering bringing it up for a final vote by the end of April, according to several sources familiar with the matter.

But the prospect of any immigration reforms passing the Senate is murky unless Democrats end the legislative filibuster. Advocates are urging their allies in Congress and the White House to prepare a backup plan: add immigration measures to an infrastructure bill later this year that could be approved without any Republican support through budget reconciliation, the parliamentary maneuver Democrats used last week to pass the latest coronavirus pandemic relief bill on a party-line vote.

“We must have a plan B,” said Greisa Martinez, the deputy executive director of United We Dream, a leading immigration advocacy group. Democrats “have every single tool and lever at their disposal and they must use it, including adding legalization to the upcoming [infrastructure] package.”

An attempt by Democrats to bypass Republicans on one of the most controversial issues in the country would likely cause a political firestorm at a time when tensions between both parties are already at a boiling point.

READ MORE: Path to citizenship in new Democratic immigration bill

Democrats are crafting the next round of pandemic relief around infrastructure and jobs in the hopes that doing so will attract some Republican support. Infrastructure is one of the last issues in Congress that Republicans and Democrats claim they can agree on, though there are still significant disagreements between both parties about how to pay for improvements.

Attaching immigration measures to the infrastructure package would jeopardize perhaps Biden’s best chance at passing a major bipartisan piece of legislation and proving himself to be the unifying consensus-builder he cast himself as.

There is also no guarantee that the move will work. The Senate parliamentarian would have to allow immigration measures to be included in legislation with strict budgetary requirements. The parliamentarian recently ruled that increasing the minimum wage did not meet the standard, and Democratic officials have warned outside groups the same thing could happen with immigration.

Nevertheless, proponents pushing Democrats to be prepared to go-it-alone on immigration are making the case that it would be worth trying if there is a possibility of achieving part of a goal that has eluded the party and immigration reform advocates for decades.

Asylum seeking migrants from Central America await transport after crossing the Rio Grande river into the United States from Mexico on a raft in Penitas, Texas, U.S., March 12, 2021. Photo by Adrees Latif/REUTERS

Supporters have urged Democrats to move as quickly as possible on the issue, given the high stakes involved for millions of undocumented immigrants. Without a legislative solution in place, about 650,000 undocumented immigrants who are currently shielded from deportation by the Deferred Action for Childhood Arrivals program could lose their protection if a federal judge in Texas strikes down DACA in a ruling later this year.

Congress also left undocumented immigrants out of its latest pandemic relief package, leaving many workers — including those who hold essential jobs — to fend for themselves. A January report from the Migration Policy Institute found that 9.3 million undocumented workers met the income requirements to receive stimulus checks but were ineligible because of their illegal status.

Biden could grant legal status to somewhere between 4 and 5 million people, advocates said, by including the House bills covering Dreamers and farm workers in the infrastructure package, along with a separate provision protecting some essential workers.

“That would be a huge breakthrough,” said Frank Sharry, a veteran immigration reform leader who heads the group America’s Voice.

“It’s not everything we want and will fight for over time,” said Sharry. “But it would be a remarkable step towards that goal” of putting the entire U.S. population of undocumented immigrants on a pathway to citizenship.

Others said anything Democrats can do on immigration this year would benefit them politically in the 2022 midterms and beyond, given the growing influence of the Latino electorate.

“From an electoral viability standpoint, it’s absolutely critical to show people of Latin American origin that the Democratic Party is the party they need to be with,” said Oscar Chacón, the executive director of Alianza Americas.

READ MORE: The challenges Biden will face on immigration reform

In the early stages of what will be a divisive, monthslong legislative battle, the White House and Democrats working on immigration have been careful to avoid alienating Republicans by threatening to go ahead without them if they refuse to budge on the issue.

The White House declined to comment. House and Senate officials, and outside allies who communicate regularly with the White House, said Biden and Democratic leaders were committed to making a good faith effort to build bipartisan support for immigration reform first, before considering other alternatives.

“Members in leadership and the president are interested in how far a process working through regular order gets,” a senior House Democratic adviser said.

But advocates are pressing Democrats to act through budget reconciliation if they exhaust their other legislative options, the senior aide acknowledged. “They’ve embraced an all-of-the-above approach and that’s certainly part of it.”

Some Democrats have echoed that message while insisting publicly that a bipartisan agreement on immigration remains within reach.

A spokesman for Sen. Bob Menendez, D-N.J., who introduced the comprehensive proposal in Congress along with Rep. Linda Sánchez, D-Calif., said the senator would “continue to push” for the legislation, calling it the “most inclusive and humane framework for immigration reform.”

“However, as he has stated before, all options are on the table. He will pursue any and all options in his quest to provide a path to legalization to as many immigrants and their families as possible,” the spokesman said.

Alliance San Diego and other Pro-DACA supporters hold a protest rally in front of San Diego County Administration Center in San Diego, California on Sept. 5, 2017. Trump’s latest proposal would give DACA recipients three years of relief in exchange for border wall funding. Photo by John Gastaldo/Reuters

Senate Majority Leader Chuck Schumer, D-N.Y., will play a pivotal role in the final outcome once the Senate takes up the immigration legislation passed by the House. Schumer represents a state with a large immigrant population, and several sources who were familiar with his thinking said the majority leader views immigration as one of his “legacy” issues and is committed to getting something done.

Schumer’s office did not respond to requests for comment. Schumer told reporters Tuesday that he planned to push for “as bold an immigration bill as we can get.”

Immigration reform advocates said they believed Schumer and the other two Democrats leading the charge on immigration in the Senate, Menendez and Sen. Richard Durbin, D-Ill., the majority whip, understood the urgency of taking action this year while Democrats control both chambers of Congress.

Officials at the White House share the sense of urgency, according to allies who speak with Biden’s chief immigration aides. Two top White House immigration advisers, Tyler Moran and Esther Olavarria, were key players in shaping the comprehensive immigration reform plan, several sources said, and have kept an open line of communication with outside groups since Biden took office.

“They wouldn’t have taken the job if they weren’t assured that this White House was serious” about passing immigration reform, Sharry said.

The willingness by advocates to accept a piecemeal approach to immigration reform represents a significant shift. For the past two decades, supporters and their allies in Congress focused on passing comprehensive legislation that would fix the nation’s broken immigration system in one fell swoop. That strategy hinged on offering Republicans funding to strengthen border security in exchange for their support for legal status for millions of undocumented immigrants.

But the all-or-nothing tactic failed repeatedly, most recently in 2013 when the Senate passed a comprehensive reform bill that was blocked by House Republicans, who refused to bring it up for a vote.

Democrats say this time could be different. But lawmakers and advocates are coming to the realization that it’s unlikely Biden and his party can find common ground with Republicans who moved further to the right on immigration under President Donald Trump.

The likelihood of a bipartisan deal on immigration has been further complicated in recent weeks by the growing number of unaccompanied children arriving at the Southern border. Republicans have criticized the Biden administration’s response, and used the situation at the border to argue against the president’s ambitious proposal to overhaul U.S. immigration laws.

Ahead of the votes Thursday on the Democrats’ immigration bills, Rep. Maria Salazar, R-Fla., released the draft of a competing immigration reform plan that would offer many undocumented immigrants a pathway to citizenship if they meet a range of criteria, including paying back taxes and passing a criminal background check.

But at a press conference Wednesday at the Capitol announcing her proposal, Salazar, Sen. Lindsey Graham, R-S.C., and other Republicans said Biden needed to strengthen security along the U.S.-Mexico border in order to pave the way for negotiations on immigration reform.

Graham, who helped lead the unsuccessful bipartisan immigration reform push in 2013, said any deal now would have to include an agreement by Democrats to build some sections of the Southern border wall that Trump started but didn’t complete.

Graham also demanded that Biden reinstate the Migrant Protection Protocols, a Trump-era policy known as the “Remain in Mexico” rule that required immigrants seeking asylum in the U.S. to wait in Mexico while their claims were being processed. Under the policy, more than 70,000 asylum seekers were turned back to Mexico from the U.S. border while the policy was in effect under Trump, according to the TRAC Immigration Project.

Democrats were deeply opposed to the policy and Biden ended it after taking office. He also put a halt to Trump’s border wall project, another policy that Democrats and immigration advocates viewed as a symbol of the former president’s xenophobic, hardline immigration policies.

The Democrats’ comprehensive reform plan would create “open borders” and was designed to “appease the hard left,” Graham told reporters, underscoring how far apart the parties are on immigration.

“Biden has lost control of the U.S.-Mexican border. Until he regains control by implementing policies that work, it’s going to be really hard to do the Dreamers or anybody else,” he said.

Immigration reform advocates said they’ve made clear to Democratic lawmakers that they’re no longer willing to support proposals that include large increases in border security funding in exchange for promises from Republicans to support a pathway to citizenship for undocumented immigrants.

“The border is basically militarized at this point,” said Sergio Gonzales, the executive director of The Immigration Hub. “Another bill that ties the fate of millions of undocumented immigrants to insensible demands for billions of dollars” in border security is unacceptable, he said. “That’s a common view held among a lot of advocates and a lot of Democrats at this point.”

Gonzales added that advocates were realistic about the odds of any immigration reform passing the Senate. “I think it’s going to be very difficult. I don’t think it’s impossible, [but] that mountain is very steep,” he said.

Martinez, the head of United We Dream, said Democrats had better be prepared to act on their own. “It is imperative for them to use every single avenue possible,” she said. Failing to act would be a grave “political miscalculation.”