Democrats’ immigration reform legislation would overhaul much of federal policy, but despite its 350 pages, the bill is silent on a number of key considerations.
Protocols for caring for families and children, border wall infrastructure, decriminalizing illegal immigration, immigration courts, employment-based immigration, and private detention facilities were not addressed in either the House or Senate versions of the bill introduced last week.
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1. Family and children detention protocols
The bill does nothing to amend the Flores settlement agreement, a court ruling that mandates migrant families and children are released quickly, even as increasing numbers are encountered on the border.
Its not being addressed means families encountered by Border Patrol will continue being released into the country.
The Flores settlement agreement originated from a lawsuit in the mid-1980s over the detention of an unaccompanied girl. A 1997 ruling in the case effectively prevented federal law enforcement from detaining migrant children for more than 20 days. In 2015, it was expanded to include families.
Flores was intended as a temporary measure, according to the Congressional Research Service, and was only to remain in effect until the government put forward regulations that the court would approve.
2. Border wall infrastructure
Throughout the Trump administration, Congress made approximately $1.375 billion available each year for border wall construction, which included technology and roads. The new bill gives more funding to the Department of Homeland Security to acquire technology to inspect cargo, passengers, and vehicles coming through air, land, and sea ports of entry nationwide. The DHS secretary will develop and implement a plan to secure the southern border between official crossing points, where, in fiscal year 2019, more than 1 million people illegally crossed from Mexico and were arrested by Border Patrol.
However, the legislation does not include plans for physical infrastructure between ports of entry. The last major immigration reform legislation introduced by the Senate Gang of Eight in 2013 included billions of dollars for border security to prevent illegal migration at the U.S.-Mexico border, though it failed to get through the House. A law signed by former President Ronald Reagan in 1986 provided a pathway to citizenship for 3 million illegal immigrants in return for enhanced border security measures and tougher enforcement of worker laws inside the U.S. No similar physical border provisions are present in the Biden-backed bill.
3. Decriminalization of illegal entry into the U.S.
The bill does not change a law that defines illegally entering the country or being unlawfully present as a criminal act. Former 2020 Democratic presidential candidate Julian Castro pushed in 2019 to change the law so that it would be a civil violation instead of a criminal charge, at one point sparking a tense debate exchange, but his request was left out of both bills.
4. Immigration courts
Nationwide, 460 immigration judges decide all immigration cases, of which more than 1 million are waiting to be heard. Biden’s bill calls for an additional 220 immigration judges to be hired between fiscal years 2021 and 2024, but plenty more can be done to speed up the judicial process.
“Adding judges may help alleviate some of the issues with the courts, but by itself, It’s not going to address what are deep problems with the court system,” said Gregory Chen, government relations director for Washington-based American Immigration Lawyers Association. “The courts have been infected with political procedure — political and ideological processes that have made it impossible for the courts to operate independently and fairly.”
Specifically, judges need authority to manage their own dockets, and where the bill could have codified changes, it did not.
5. No end to private-run detention facilities
Privately run immigrant jails were not banned. Immigration policy analyst Cris Ramon suggested that the Biden administration’s transitioning to focus on arresting and deporting a smaller pool of illegal immigrants would lead to fewer people being brought into immigration detention and needing fewer of these facilities. The bill does call for more immigrants released from federal custody to be monitored through the Alternatives to Detention program.
“It’s an interesting, tricky act because it’s not quite going as far as the advocates on the Left are going, saying, ‘We want to get rid of all detention,’” said Ramon. “What the administration is recognizing is that there’s sort of some political obstacles to completely getting rid of immigration detention at large.”
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“I don’t think you’re going to have Democrats and Republicans sign off on that with appropriations, and I don’t think you’re going to see an effort by the [private prison] industry to completely disappear,” said Ramon. “They’re recognizing that you need to sort of have either alternatives to detention or have ways to send fewer individuals to detention and having those individuals be key priorities.”
