Congress returns this week hoping to finally unveil a bipartisan deal on border and immigration policies that has eluded lawmakers for months and held up a national security funding package that would deliver foreign aid to Ukraine and Israel.
The trio of senators leading negotiations with the White House met several times on Capitol Hill last week, touting unspecified progress. Oklahoma Sen. James Lankford, the lead GOP negotiator, signaled on Sunday that a deal is imminent.
“We’re hoping to get text out by later on this week,” he said on Fox News. “If we can pass this in the days ahead in the Senate, send it over to the House, the House can work to improve it or the House can take a serious look at it and say, ‘This makes real progress on the border. Let’s go get this, bank this and then keep going for more.’”
The Messenger interviewed four immigration policy experts on what they’re watching for as the deal comes together.
They cited concerns about the sweeping proposals under consideration: new expulsion authority to rapidly turn away migrants without hearing their asylum claims; other restrictions to asylum and parole that would limit legal pathways of entry; expanding an authority that allows expedited removal of undocumented immigrants near the border to the interior of the country; and talk of mandatory detention for those who are allowed to remain in the country and have their asylum claims heard.
“In total, these provisions basically amount to what certain Republican lawmakers have effectively said is a push to shut down the border,” Raha Wala, vice president of strategic partnerships and advocacy at the nonpartisan National Immigration Law Center, told The Messenger. “Our fear is it would constitute one of the most alarming and dramatic anti-immigrant legislative proposals in modern history.”
“None of this is what we should be doing,” Todd Schulte, president of a bipartisan advocacy organization called FWD.us, told The Messenger. “It's certainly possible that a really harmful deal gets made and that would be tragic and terrible.”
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Expanding legal pathways for migrants to enter the U.S. in a “safe and orderly” way would “take all this pressure off the border,” Schulte said of alternative solutions.
President Joe Biden and his administration have not made immigration reform a priority since unveiling a comprehensive plan to open more legal pathways soon after he assumed office, Aaron Reichlin-Mecklin, policy director at the nonpartisan American Immigration Council, said. Nor is he happy with how the White House is handling last-minute negotiations with Senate lawmakers.
“The details of the deal that have been released so far don't seem like the trade-offs are worth it,” Reichlin-Mecklin said.
If Biden agrees to these “extreme” policies, it would represent “a catastrophic betrayal” of the promises he made in campaigning to become president, said Hannah Flamm, policy counsel at the International Refugee Assistance Project, a nonpartisan global legal aid and refugee rights organization.
Biden promised a more humane approach to immigration than former President Donald Trump, who is again touting hardline policies as he seeks the GOP presidential nomination.
What’s worse, Flamm said, is that the current negotiations would permanently codify some Trump-era policies, which were done mostly through executive action, into law to buy votes for a temporary funding package.
“These are really extreme, xenophobic policies that are responsive politically to a false narrative,” she said, calling the emerging proposals “unconscionable trade-offs” being agreed to in exchange “for military funding that will expire in a matter of months.”
Expulsion Authority
The congressional negotiators are considering a provision that would provide new authority to the administration to expel migrants at the border, replacing the expired pandemic-era authority known as Title 42.
Title 42 used the public health emergency as rationale for rapidly expelling migrants at the border without allowing their asylum claims to be heard. The new expulsion authority is expected to instead use a number of encounters at the border as a trigger for when the border should effectively be shut down.
“This is a terrible way to make policy,” Schulte said. “It’s a total political trap.”
The Title 42 asylum ban led to increased chaos, Wala said.
“Past is prologue, right? So if it didn't work before, it's not gonna work this time,” he said of a new expulsion authority.
“It does not deter people from coming to the border. It does not achieve the optics of reducing the border encounter numbers either,” Flamm said. “Instead, that actually results in the apprehension numbers appearing even higher because there are so many people who, fearing for their lives, are not going to give up trying to come to the United States.”
Asylum Changes
Lawmakers are considering a number of changes to existing asylum policies, including raising the “credible fear” standard for initial screenings.
“To the layperson, significant possibility of harm sounds very similar to reasonable possibility of harm, sounds similar to more likely than not to experience harm,” Flamm said. “But these distinct legal standards have life and death consequences for people.”
The standard is currently low by design because asylum screenings, known as credible fear interviews, take place “in custody immediately, or within a matter of days or weeks of some of the most traumatic days of many people's lives when they are trying to reach the United States,” she said.
“We as a country are meant to err on the side of not returning people to persecution,” Flamm added, explaining those who pass the initial screening are not guaranteed to remain in the U.S. but get a chance to explain their circumstances to an independent adjudicator.
The law does prevent migrants who cross the border illegally from being granted asylum, Reichlin-Mecklin said. But it lacks teeth because migrants can’t be deported under that provision until they go in front of an immigration judge, which given current processing delays is years for most people, he said.
“That process can't actually occur earlier because they don't have enough asylum officers to put people through expedited removal and credible fear interviews,” Reichlin-Mecklin said.
Biden asked for $770 million to hire 1,600 new asylum officers in his national security emergency funding request. “It would double the number of asylum officers … but it’s going to take some time,” Reichlin-Mecklin said, projecting a two- to three-year turnaround.
Another concern is that lawmakers may agree to a rule that would ban migrants from seeking asylum in the United States if they crossed through a designated “safe third country” and were not already denied refuge there.
Schulte said the right to make an asylum claim is a basic protection that’s been part of U.S. law since after World War II. “This would give the president the ability to snap his fingers” and effectively take that away, he said.
Cumulatively, the asylum changes would have an enormous human cost, Wala said.
“The bottom line is that we will see more families separated, more children detained, more refugees and asylum seekers turned back to face persecution, torture and even death,” he said.
Parole Restrictions
One of the biggest hangups in the talks has been whether lawmakers would place restrictions on immigration-related parole, as Republicans are demanding and Democrats are resisting. The executive authority allows migrants who do not qualify for asylum or other legal pathways to be granted temporary authorization to reside in the U.S. for humanitarian or significant public benefit reasons.
“I think parole has been such a sticking point because of how powerful it's been as a tool for the Biden administration,” Reichlin-Mecklin said.
Presidents on both sides of the aisle have historically relied on the provision allowing select noncitizens to temporarily enter or remain in the U.S. to assist refugees fleeing geopolitical hotspots such as Cuba, Cambodia, Laos, Afghanistan and most recently Ukraine, he said.
“So any efforts to rein in its use at the border has to keep in mind that it's used at the border and it's used for these broader humanitarian projects,” Reichlin-Mecklin said, stressing that “they all rely on the same statutory authority.”
He cited Customs and Border Patrol figures tracking 24 parole grants for migrants who crossed illegally in the latter part of 2023 as evidence that that what Republicans claim is abuse of the authority is waning.
“The only people being paroled at the border are the ones who are coming in legally. And the ones who are coming in illegally are not being granted parole. They're just being issued notices to appear in court because they don't have the resources to put them through expedited removal,” Reichlin-Mecklin asserted.
If negotiators decide to restrict parole for people legally crossing the border at ports of entry, “that would require the mandatory incarceration of huge numbers of people,” Schulte said.
And if parole restrictions are applied more broadly to those applying outside the U.S., it would cut off any option other than seeking asylum at the border, Flamm said.
Expedited Removal
Lawmakers are considering beefing up the law when it comes to expedited removal of undocumented immigrants.
Currently, migrants who do not qualify for asylum or other legal pathways can be quickly expelled at ports of entry or if they’re arrested within two weeks of their arrival and 100 miles of the border. Negotiators are reportedly considering expanding expedited removal authority so that such arrests can be made anywhere in the United States.
That is dangerous because it could result in other undocumented immigrants, like those awaiting court dates for their asylum claims or those here under the Deferred Action for Childhood Arrivals program, being caught up in law enforcement action and deported without any legal recourse, Schulte said.
“It would really fundamentally transform the nature of the United States,” he said.
“There's an expression that immigration court is death penalty cases in a traffic court environment. And what expedited removal means is the traffic cop becomes the judge in addition to being the arresting officer,” Flamm said. “You eviscerate due process.”
Mandatory Detention
For migrants who make it past all of the other barriers to entry lawmakers are considering, Republicans are dead set on not letting them be released into the country until their asylum cases go before a judge – ending so-called “catch and release.”
Such changes could jeopardize existing protections for migrant children that limit how long they can be detained.
“In terms of the optics, detaining more people, again, does not deter people from coming and just means that there will be images of kids in cages again,” Flamm said.
Prolonged detention “will result in grave health harms to people in custody” and limit their access to lawyers that can help with their asylum claims, she added.
“If you say you have to arrest them, incarcerate them — children and families and pregnant women and everyone — the idea is if you make life absolutely so miserable, people would be less likely to apply,” Schulte said.
The U.S. doesn’t have enough jail space for mandatory detention and space to hold hundreds of thousands of people cannot be built quickly, he said.
“It’s all kind of a trap to spur chaos for a while and eventually shut things down,” Schulte said. “People are going to die if you do this — a lot of people.”