Democratic and Republican Members of Congress alike introduce “private immigration bills” designed as a last-minute effort to protect some immigrants facing deportation. This week, Immigration and Customs Enforcement (ICE) announced that it would no longer issue stays of removal (temporary protection from deportation) for many individuals named in these private immigration bills.

The agency claims that these bills are hampering their ability to deport people who fall under their new removal priorities. In a letter to Senate Judiciary Committee Chair Charles Grassley , ICE announced:

  1. The agency will now only issue a stay of removal if the Chair of the Judiciary Committee or the Chair of the Immigration Subcommittee sends a written request for a stay of removal independent of a request for an investigative report.
  2. ICE will not issue more than one stay or removal for the same individual. Any stay they do issue will be limited to six months, with a possible 90-day extension if there are extenuating circumstances.
  3. Even if a stay of removal is granted, ICE will still deport individuals if it discovers “derogatory information” about them.

Private immigration bills are generally a last resort for individuals coming from all over the world who are in deportation proceedings and have exhausted all other remedies. Any Member of Congress can introduce a private immigration bill on behalf of an immigrant seeking protection from deportation, and members of both parties have done so. These bills are only introduced for the most critical immigration cases, but the bills seldom pass. While they are pending, immigration enforcement agencies typically do not deport those individuals. This provides the elected official with some breathing room as they work to pass the bill.

Senators and Representatives are generally very careful about who they introduce a private immigration bill for. Even Members who take a hard-line stance on immigration have introduced private immigration bills when they felt the individual was especially deserving and couldn’t get relief through current law. Immigrants with any criminal history are not eligible for relief under a private immigration bill, according to the criteria agreed to by Congress.

There have been about 275 private immigration bills introduced since 2010, although some are for the same individuals and have been reintroduced several sessions in a row. None of the bills introduced in the last Congress received floor action or became law. There are currently 14 private immigration bills pending in the House.

The Committee Chairs may ask ICE for information on the individual’s immigration case and may request a stay of removal. They only do this to prevent “extreme hardship” to the immigrants or their immediate families. If Congress passes these bills and the president signs them, the named individuals will be allowed to remain in the U.S. and will receive lawful permanent residency (LPR status, or a “green card”).

In response to the ICE letter, Senators Dianne Feinstein and Dick Durbin issued a scathing statement, pointing out the Trump administration’s “willful disregard for the Constitution’s separation of powers in the name of the President’s deportation agenda.” According to Feinstein and Durbin:

Children’s and families’ lives are on the line. Private immigration bills are a critical safety net that Democrats and Republicans alike have carefully used for a small number of the most critical cases. The executive branch for decades—under both Democratic and Republican administrations—has shielded individuals from deportation while private bills are pending. The process for how private bills would work has only been changed in the past after extensive consultation with members of Congress.  The department has now unilaterally changed that process without consulting Congress. This is a mean-spirited action that tramples firm, longstanding practice between two co-equal branches of government.

Private immigration bills remain an important last chance for some immigrants facing deportation. A large increase in private immigration bills can signal that the law is being interpreted more narrowly and is not allowing any degree of flexibility or grace. Unfortunately, ICE is risking its relationship with Congress in order to expand its deportation activities.

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