Immigration advocates see work permits as Biden's best option

President Biden’s left flank is pushing for expanded work permits for undocumented immigrants, not just as a humanitarian imperative, but as a political boon ahead of November.

Speculation over Biden’s next play on immigration has reached a fever pitch, with reports of imminent executive action on two fronts: expanded work permits and a crackdown on asylum at the border.

While the administration is widely expected to do both, civil rights advocates say action on work permits will do more to move the needle in Biden’s favor.

“It’s not just good policy, it's good politics. Recent polling shows that two-thirds of voters in swing states support expanding work permits for undocumented immigrants, including long-term workers, farmworkers, Dreamers without DACA and spouses of U.S. citizens,” said Deirdre Schifeling, the ACLU’s chief political and advocacy officer.

“Today, President Biden has a remarkable opportunity to deliver on behalf of the American people and to uphold his campaign promise to ensure that immigrant families can stay together.”

The Biden administration is trying to thread the needle between support for mixed-status families and strict enforcement at the border.

Though tough-on-the-border stances can be found throughout the political spectrum, the Biden campaign is leaning into the sharp contrast between him and former President Trump on family relief.

“While President Biden continues to do everything possible in his authority to create more legal pathways to citizenship, it will ultimately take Congress acting to fix our broken system, which Donald Trump made worse as president,” said Fabiola Rodríguez, deputy Hispanic media director for the Biden campaign.

“That’s exactly why he worked in good faith to pass bipartisan immigration legislation. Trump killed that legislation, and is openly running on an anti-immigrant agenda. The American people deserve a president who works to deliver solutions for families instead of personal politics — only Joe Biden is that president.”

But advocates are warning Biden against a middle-of-the-road approach amid the heated immigration rhetoric from Trump.

“I don't think we have ever faced the kind of MAGA extremism that we are facing now. And Democrats have always for good – but sometimes to our chagrin – have wanted to do things in a bipartisan way, have wanted to solve this problem in the way that we know needs to be solved, which is through Congress,” said María Cardona, a top Democratic political strategist.

Cardona added that former President Obama went to lengths to show good faith in bipartisan immigration and border negotiations.

“And we know how that ended up. Joe Biden has done the same thing. He has tried to do this in good faith. Good faith does not exist on the Republican side anymore. And so we are now at the point where we need to do this because it's the right thing to do and because frankly, it will save lives.”

A Data for Progress poll reviewed exclusively by The Hill found that voters overwhelmingly support a softer approach to asylum if it is framed as a choice between humane and punitive approaches.

The poll found that 52 percent of respondents overall are more likely to support a candidate with a humane approach, while 26 percent said they’d be less likely; 38 percent said they would be more likely to support a candidate with a punitive approach, and 40 percent said they would be less likely to support such a candidate.

The poll found Democrats overwhelmingly support an approach labeled humane, with a 63 percentage-point net positive. The punitive approach garnered a 30 percentage point net negative among Democrats.

The numbers are closer among independents — net positive of 18 percentage points for a humane approach, net negative of 9 percentage points for punitive — and swing state voters, who returned a 7 percentage-point net positive for a humane approach and a 6 point net negative for a punitive one.

An order limiting asylum will face at least two practical limitations: the Department of Homeland Security (DHS) budget and Mexican President Andrés Manuel López Obrador.

A crackdown on asylum, as proposed in the bipartisan Senate immigration deal that failed earlier this year, would prevent U.S. border officials from processing asylum claims at the border under certain circumstances. Foreign nationals encountered by the Border Patrol would then be either returned to Mexico, indefinitely detained pending repatriation or released with orders of deportation.

López Obrador, a crucial partner in immigration enforcement, would have to approve of any plan to return third-country nationals to Mexican territory.

Indefinite detention of hundreds of thousands of migrants is neither a political nor a logistical option, and the release of migrants with orders of deportation versus pending asylum claims could mean hundreds of thousands of new arrivals without work permits, a situation likely to anger Democratic mayors in big cities.

Still, many advocates are bracing for an executive order limiting who can claim asylum at the border while getting ready to campaign for Biden on the back of a work permit expansion.

“I can share with you that if the president chose to do affirmative action of relief for the undocumented individual, he will defang MAGA of talking points and rhetoric, because all of a sudden they will not know who is ‘not supposed to be here,’ and I use that in quotes,” said María Teresa Kumar, CEO of Voto Latino.

At least one of the measures in the advocates’ wish list, Temporary Protected Status (TPS), is a commonly used program that’s proven resilient against court action and has already been aggressively used by the Biden administration.

Under TPS, DHS designates specific countries as too dangerous or unstable to repatriate its nationals, who — if already present in the United States — are granted work permits and deferral from deportation.

The Biden administration’s largest TPS designation by population benefited more than 400,000 Venezuelans who were in the United States before August 1; a redesignation of Venezuela, for example, could give TPS protections to Venezuelans who have come since.

Those protections apply regardless of immigration status, so TPS would apply whether foreign nationals are undocumented, have been processed and released into the country with orders of deportation, are asylum applicants, or even if they have temporary visas.

But nearly half the country’s undocumented population is from Mexico, a country that for diplomatic, logistical and geographical issues is unlikely to ever be designated for TPS. For similar reasons, designations are unlikely for other countries of origin of large undocumented populations, such as India.

Advocates are also eyeing an existing program that currently allows undocumented spouses of U.S. military service members to regularize their status, which could be expanded to apply to all undocumented spouses of U.S. citizens without legislative changes.

And they’re pushing for expansion of cancelation of removal, a program that allows U.S. citizens to petition for an undocumented relative whose removal would cause the citizen to “suffer exceptional and extremely unusual hardship.”

Granting work permits to long-term undocumented immigrants could also ease some growing pressure in cities including Chicago, where some undocumented immigrants and their families are souring on Democrats, as new arrivals get work permits and they don’t.

In all, advocates expect up to 3 million undocumented immigrants could apply for work permits under those programs.

The expansion of the military spouses program and cancelation of removal would also directly benefit adult U.S. citizens — eligible voters.

“We strongly believe that if President Biden acts to solve our family's immigration nightmare, he will be rewarded by the voters, the 10 million voters in mixed status families, by Latino and immigrant family voters, and by the overwhelming majority of decent Americans who believe in immigration solutions,” said Allyson Battista, a board member of American Families United whose undocumented husband of 20 years would have to leave the United States for 10 years to have a shot at fixing his paperwork.