By Aaron Reichlin-Melnick | Nov 17, 2023
After weeks of uncertainty as to whether Congress would reach a deal to fund the government and avoid a shutdown, earlier this week Congress passed a continuing resolution bill which funds the government through the end of the year. But this delay will only last a matter of months. In the meantime, Congress is still debating what to do with President Biden’s request for emergency supplemental funding to address the situation at the southern border.
Reaching a deal on this request may be hard, especially as GOP leaders have demanded that any funding for Ukraine or other emergency priorities come with significant changes to border policy. On November 6, a group of GOP senators, led by Senators Lankford and Cotton, put out a list of demands for changes to immigration law in exchange for supporting Ukraine and parts of the supplemental.
The Senate GOP Working Group proposal largely adopts the language of HR2, the “Secure the Border Act.” It passed the House earlier this year without a single Democratic vote.
Ending Humanitarian Protections
The proposal amounts to a near-complete end to humanitarian protections, which have existed since 1980. The proposal would ban asylum to all but a handful of individuals who are either Mexican or who already possess a visa and can afford to fly here on a nonstop from their home country. This is because the proposal would ban asylum to any person who traveled through a third country on their way to the United States, even if their stay was as short as a few hours or the country was highly dangerous for migrants.
It would also ban asylum for every person who crosses the border between ports of entry (the majority of asylum seekers over the last decade) and imposes new restrictions that would apply even to those who have long since entered the country. When taken together with the wholesale ban on people who traveled through a third country, the proposal amounts to a denial-first system.
Making matters worse, for those few people who might still qualify for an asylum screening, the proposal eliminates key due process protections. Under current law, asylum seekers who receive a so-called credible fear interview are entitled to have an immigration judge review any finding by an asylum officer that a person did not qualify. Currently, judges overturn 1 in 4 negative credible fear decisions by asylum officers that are appealed, a staggeringly high appeal success rate. But under the guise of “streamlined screening,” the Senate GOP proposal eliminates that right to appeal. If an asylum officer said no, that would be the end of the line—no matter how illogical, illegal, or inhumane the decision.
Mass Detention
The proposal also contains language from HR2 which would require DHS to detain every single migrant crossing the border—including children and families—or send them back to Mexico. Even migrants who are eligible for release on bond would lose that eligibility.
It is, of course, impossible to detain every migrant, as even Justice Alito himself admitted in a Supreme Court decision last year. The proposals echo calls from candidate Trump to create mass prison camps at the southern border.
Ending Humanitarian Parole
The Senate GOP proposal would also end the use of humanitarian parole, a form of temporary permission to enter the United States which has existence since 1952. Over the generations, humanitarian parole has allowed the United States to admit Vietnamese refugees, Jews fleeing the Soviet Union, and Cubans. Despite the incredible importance of this authority, the Senate GOP proposed to narrow it so much it would be effectively useless as a tool during migration emergencies.
The immediate impact of ending humanitarian parole would be to stop the parole program set up by President Biden for refugees fleeing the war in Ukraine and for nationals of Cuba, Venezuela, Haiti, and Nicaragua. It could potentially even force the United States to deport Ukrainians who came through the Uniting for Ukraine parole program and whose parole is set to expire as early as next year. The same problem would occur for Afghans who were evacuated in 2021, many of whom are still present in the United States through parole, given Congress’ ongoing failure to pass the Afghan Adjustment Act.
Beyond asylum and parole, the Senate GOP proposal also calls for restarting border wall construction, giving the DHS secretary authority to waive nearly any law other than the constitution when operating border infrastructure and surveillance technology. It also seeks to overturn two Supreme Court decisions that require immigration officials to provide people they are seeking to deport with a single document containing a date and time for their first immigration court hearing.
Given the scale of these radical proposals, it is not a surprise that the White House has largely rejected any such changes. Because the Biden administration supplemental funding request is focused on improving the capacity of the U.S. asylum system and surging additional resources to the border for processing, there is a fundamental mismatch between the Senate GOP demands to end asylum and any real desire to fix a broken system.
As a result, while negotiations continue, any kind of compromise remains far off. So long as Congressional leaders continue to disagree on whether we should have a robust asylum system in the first place, finding a balance between human rights and border enforcement will remain difficult. And unfortunately, the Senate GOP’s starting point for negotiations are making it even harder to find common ground.