The Biden administration recently announced a new executive order aimed at protecting the undocumented spouses and children of U.S. citizens from deportation. Lauren R. Aronson, a clinical professor and the director of the Immigration Law Clinic at the University of Illinois Urbana-Champaign College of Law, spoke with News Bureau business and law editor Phil Ciciora about the implications of the policy.
How does the new program compare to the Deferred Action for Childhood Arrivals program, the last major immigration initiative, which dates back to 2012?
We don’t know the exact details of the new program, and there will inevitably be litigation aimed to enjoin it, so a lot remains to be seen. But according to experts, the new program could potentially benefit around 500,000 unauthorized immigrants. The DACA program, by comparison, benefited just over 700,000 unauthorized immigrants.
To put those numbers into perspective, it’s estimated that there are around 11 million unauthorized immigrants in the U.S., although that’s likely a lowball.
This new program is smaller than DACA, especially considering that, after 2017, no new people were able to benefit from DACA. Had every eligible person applied, there could’ve been up to 1.2 million total participants. So no, this new program isn’t as significant in terms of sheer numbers.
Critics have derided the new program as “mass amnesty,” even though a smaller version of the program that benefits military families has existed for a decade. Is it amnesty?
The answer is “yes” and “no.” Obviously, it’s not “mass amnesty” because it benefits so few individuals, but it is sort of an amnesty in that it forgives people who entered the country without permission. It will forgive the unauthorized entry of maybe half a million people and offer them a pathway to citizenship. It’s a form of amnesty, but it’s an amnesty that already exists for military families. And it pales in comparison to the last legislative amnesty. President Ronald Reagan’s Immigration Reform and Control Act of 1986 affected upwards of 4 million immigrants. The 1986 amnesty forgave violations of immigration law but didn’t require a relationship to a U.S. citizen. That qualifying relationship is one huge difference between the Reagan amnesty and the Biden administration’s new program, which is pitched as being focused on family unity. Speaking purely in terms of numbers, Biden’s program is small potatoes compared to the Reagan amnesty.
Critics also compare this new program to DACA, which they dubbed an “amnesty” as well, but that is a patently incorrect characterization, as an amnesty requires full forgiveness and thus a pathway to citizenship. Such a pathway still does not exist for DACA recipients, who, to this day, remain in administrative limbo.
Referring to this new program as amnesty is not incorrect. But you still need to be married to a U.S. citizen to qualify, and that marriage had to exist prior to June 17, 2024. You must also have been present in the U.S. for at least 10 years, and you can’t have a criminal record. These requirements significantly limit the eligible population, making the term “mass amnesty” hyperbolic.
The devil will be in the details of the rollout of the program. Is a drunk driving arrest enough to disqualify someone? We don’t know yet, but maybe. Even a misdemeanor DUI precluded someone from DACA eligibility.
The announcement comes on the heels of the Biden administration’s blanket asylum ban on migrants who illegally cross the border. Does this make the new program an election year gambit to attract the Latino vote, or is this actually good policy?
The Biden administration’s asylum ban is completely illegal and is the antithesis of good policy. It goes against U.S. and international law, as well as international treaties to which the U.S. is a signatory. The whole point of asylum is that you shouldn’t be punished for violating a law when you’re fleeing persecution and running for your life. U.S. law allows a person to apply for asylum regardless of whether they entered the U.S. with permission or without it.
Ultimately, I think the asylum ban was a political maneuver to look tough on immigration, and this new program is a corresponding move to soften the blow. The Biden administration is essentially saying, “Yes, we implemented this overly harsh and probably illegal policy at the border but, look, we’re going to help all these nice people who have proven themselves to be good citizens, who have been here a while, who have family here and need to stay.” It’s all about the political optics.
Despite my cynicism, the program may still be helpful to up to half a million people. It will prevent family separation. From a policy perspective, immigrants are a boon to our economy. When they’re allowed to legally work, everyone’s wages increase. They contribute more to Social Security and Medicare. People are worried about immigrants taking their jobs, but that line of criticism is laughable. They often take jobs Americans don’t want to do and help evolve the employment landscape to push Americans into higher paid positions.
On the other hand, if he really wanted to make a splash, President Biden could have broadened the group to whom this program applied. I think part of the reason the Biden administration didn’t was that it’s trying to preemptively protect against litigation, and it probably felt that the similarity of this program to the preexisting military families program provided a bit of a safety net.
I would have liked to have the Biden administration grant “parole in place” to all unauthorized immigrants. That would make every unauthorized immigrant eligible for work authorization and potentially eligible for lawful status in the future, if they qualify through other means. Most importantly, it would bring these people out of the shadows.