In just the past two months two young children died in U.S. Border Patrol custody; the U.S. Department of Justice took extraordinary steps to expedite the Supreme Court’s review of the Deferred Action for Childhood Arrivals (DACA) initiative; and two teenagers were murdered outside a Tijuana shelter where they were forced to remain due to the Trump administration’s illegal policy of stopping asylum seekers from entering the United States. In addition, at 18 days, President Donald Trump’s partial shutdown of the federal government over his campaign promise to build a wall along the U.S.-Mexico border is now the second-longest shutdown in more than 40 years.
As exceptional as this sounds, the administration’s attacks on immigrants and refugees actually began during its first week in office and have continued daily over the past two years. As Democrats take control of the U.S. House of Representatives for the first time in eight years, they have an opportunity to provide necessary oversight, pass legislation to protect vulnerable individuals, and lay the foundations for a progressive vision for immigration policy.
Building a strong immigration oversight agenda
While the last Congress demonstrated no appetite for meaningful oversight, every committee and subcommittee in the 116th Congress will be led by a chairperson empowered to look into abuses within their jurisdiction. On the issue of immigration, it is worth remembering what this looked like in 2007, when Democrats last took control of the House of Representatives. At that time, the George W. Bush administration—fresh off the refusal of House Republican leadership to consider a bipartisan, Senate-passed, comprehensive immigration reform measure—had dramatically escalated its immigration enforcement practices. This included a series of high-profile, large-scale worksite raids and a more than 650 percent increase in the number of 287(g) agreements. At the time, front page headlines were filled with stories of gross medical neglect and abuse in immigration custody, and Immigration and Customs Enforcement (ICE) was found to be unable or unwilling to accurately track the number of individuals who had died in its custody.
The Immigration Subcommittee of the House Judiciary Committee, under the stewardship of Chairwoman Zoe Lofgren (D-CA), set an ambitious oversight agenda, holding dozens of hearings over a two-year period. Some of these hearings, together with litigation and advocacy, helped to make the case for reforms that were pursued early on during the Obama administration, including efforts to reform immigration detention and curtail military-style workplace raids.
Effective congressional oversight can serve multiple purposes, such as forcing agencies to alter or abandon policies that cannot withstand public scrutiny. This was the case earlier this year when the Department of Justice reversed its plans to end funding for the Legal Orientation Program that assists detained immigrants in removal proceedings. Oversight also can get agency officials on the record on issues that could later arise in litigation. Scrutiny into matters such as the tragic deaths of Jakelin Amei Rosmery Caal Maquin and Felipe Gómez Alonzo—the first two children to die in Customs and Border Protection custody in at least a decade—or into detention conditions more broadly can inform both the substance of legislative reforms and the urgency of enacting such reforms. During a time when truth itself is coming under fire, oversight also can, as Greg Sargent of The Washington Post wrote, “restor[e] facts and empiricism to the debate over immigration.”
Beyond the Judiciary Committee, a range of committees—including Homeland Security, Foreign Affairs, Energy and Commerce, Oversight and Reform, and Appropriations—will be able to look into a variety of topics. These could potentially include family separation; the detention of record numbers of unaccompanied children for prolonged periods of time; the Muslim travel ban; the decision to end Temporary Protected Status (TPS) and DACA; attacks on legal immigration; the evisceration of the U.S. Refugee Admissions Program; and the politicization of U.S. immigration courts, to name just a few.
Passing legislation to protect vulnerable individuals
One of the first priorities for the House—other than ending the government shutdown without compromising on core convictions—must be to pass legislation that provides permanent protection to Dreamers, young immigrants brought to the country as children, and TPS holders. The Trump administration’s decisions mean that more than 1 million individuals who can now live and work in the country may be exposed to detention and deportation in the months and years ahead. Still other young immigrants—who are now locked out of receiving DACA because of the administration’s decision to end the initiative or who were not previously eligible to apply—live every day with the fear of being arrested and deported because of the Trump administration’s decision to eliminate sensible enforcement priorities. The Congressional Hispanic Caucus as well as more than 300 national, state, and local organizations have called upon Democratic leadership to bring such legislation to the floor within the first 100 days. Speaker of the House Nancy Pelosi (D-CA) also has said that Dreamers and TPS holders will be a top priority for the House majority.
Control of the House also provides Democratic members with greater authority to shape annual appropriations bills and other must-pass pieces of legislation. Over the past three years, detention capacity has ballooned to unsustainable levels because Congress has proven unwilling to hold the U.S. Department of Homeland Security (DHS) accountable for transferring and reprogramming large amounts of funding to expand detention capacity. Moreover, ICE regularly spends above its approved detention budget early in each fiscal year and asks appropriators to shore up its accounts later in the fiscal year. By allowing DHS and ICE to manipulate the process and effectively control their own purse strings, Congress shares responsibility for the record number of immigrants detained today. This is especially damning as there are a number of proven and far more humane and cost-effective alternatives to detention. The 116th Congress can bring these abuses to an end.
The recent deaths of two migrant children in Border Patrol custody have also heightened scrutiny regarding the treatment of people apprehended along our border. Although Homeland Security Secretary Kirstjen Nielsen pledged after the second child’s death to provide more thorough health assessments to children that Border Patrol apprehends, Congress can, for example, appropriate funds specifically for mandatory screenings. Congress can also ensure that child welfare professionals and medical personnel trained in identifying the unique health needs of children are made available within a reasonable period of time.
Charting a course for the future
Although much of the work over the next two years will undoubtedly be focused on exposing and fighting back against the abuses of the Trump administration, controlling the House provides Democratic members of Congress with the opportunity to lay out a positive, progressive vision on immigration policy. All too often, the immigration debate is presented as a false choice between the United States being either a nation of laws or a nation of immigrants. But these ideals are not irreconcilable and are, in fact, mutually supportive of one another. The nation’s rich immigrant history should be coupled with an immigration system that truly works—one that allows families to reunite and businesses to find the workers they need while protecting workers’ rights and promoting entrepreneurship and integration among immigrants. Today, we have an arcane system that achieves none of these goals effectively. As a result, it long ago abandoned the normative claim to expect and deserve compliance and respect.
What does a progressive immigration system that aligns with U.S. values and restores the rule of law look like? For one, it means having a generous legal immigration system that encourages compliance with the law. Families, for example, would be able to stay together rather than be kept apart by arbitrary bars to re-entry or enforcement policies based on maximizing deportations. Workers would be able to find legal pathways into the country to fill needed positions rather than the status quo, which—without adequate legal pathways—encourages and relies upon immigration outside the law. People in need of humanitarian protection would get a fair and efficient adjudication of their claims. It also means designing an immigration enforcement system that provides fair and just outcomes and meaningful due process before independent adjudicators instead of the one-size-fits-all penalties of detention and deportation without the possibility of discretionary relief.
Conclusion
The stakes are high. For two years, Congress has permitted the Trump administration to wage a war on immigrants and refugees that has torn apart families and communities, erected an “invisible wall” around the country, and degraded America’s image in the world. In addition to conducting long overdue oversight, over the next two years, Congress can pass legislation to ameliorate some of the damage and lay the groundwork for an immigration system that truly lives up to our nation’s values and ideals. There is no time to lose.
Tom Jawetz is vice president for Immigration Policy at the Center for American Progress.