Senate Deal Would Significantly Transform Border Policy

Border Policy: The “Emergency National Security Supplemental Appropriations Act, 2024” was released on February 4. For months, a bipartisan group of senators negotiated the compromise bill, which proposes significant changes to asylum and border policy to release billions in foreign military aid.

The $118 billion bill would provide the president with a new emergency expulsion authority that would be triggered upon a certain number of apprehensions at the border; increase the threshold for screening potential asylum seekers; and create a new protection process devoid of judicial review. The proposal also includes positive measures like a pathway to citizenship for Afghan allies, 50,000 more green cards per year, and protections for the dependent children of H-1B holders.

Last year, the Biden administration requested emergency supplemental funding to provide military aid to Israel, Taiwan, and Ukraine. That request also included nearly $14 billion for immigration- and border-related processing. Republicans in both the House and Senate refused to provide funding outright and demanded asylum and border policy changes as well. The Biden administration joined the bipartisan group of senators to negotiate a deal to unlock the proposed funding. The administration, having struggled to manage the number of migrants at the border for months, indicated a willingness to accept stricter border control measures.

The result of those negotiations is a proposal that aims to transform asylum processing at the border. Some of the changes provide a glimpse into what meaningful bipartisan solutions could look like; however, others borrow from failed Trump-era policies that would exacerbate the situation at the border and harm to asylum seekers.

New Title 42-Like Expulsion Authority

The bill creates a “Border Emergency Authority,” which, under certain circumstances, would allow any presidential administration to summarily deport migrants who enter without an appointment, not permitting them to apply for asylum. This authority is similar to the public health law under Title 42 used by both the Trump and Biden administrations to expel migrants at the U.S.-Mexico border between March 2020 and May 2023.

The new emergency authority has several different triggers: border encounters reaching a daily average of 4,000 over 7 days; averaging over 5,000 during the same period; or reaching 8,500 in a single calendar day. At various points throughout the three years after the bill is passed, these standards would be discretionary (subject to the president’s decision-making) or mandatory: for example, if the bill becomes law, the administration would be forced to implement the emergency authority for the first 90 days in which any of the triggers were reached.  Noncitizens presenting themselves at ports of entry would be counted toward the overall number of encounters, but non-Mexican unaccompanied migrant children would be excluded.

Noncitizens set for summary removal could only receive a screening for non-asylum humanitarian protection by affirmatively “manifesting” their fear of persecution or torture to a border official, which means they would have to volunteer that information without prompting or show an obvious sign of fear.

The bill would establish some limitations to this authority. For example, the government would have to allow people to seek asylum at ports of entry even during a border emergency. The bill would require the Department of Homeland Security (DHS) to process at least 1,400 noncitizens daily across all southwest land border ports of entry. The bill would also allow DHS to opt people out of summary removal for a variety of reasons, including operational constraints such as overcrowding.

People summarily deported under this authority could be sent to their home countries, or, if the Mexican government is willing to accept them, sent to Mexico instead. A second deportation under this emergency authority would bar the noncitizen for one year from obtaining a visa.

The bill gives the federal government significant discretion over how to implement the new process and does not require it to be publicly announced. This could mean that, on any given day, a would-be asylum seeker would have no idea whether they would be allowed to seek asylum in the U.S. or not. Without established parameters, this could lead to significant confusion at the U.S.-Mexico border.

Faster Asylum Processing

The bill also overhauls asylum processing at the border. First, it heightens the standard for the initial screening interview to make a claim for asylum. Instead of being required to establish a “significant possibility” that their claim would prevail—defined as a 10% chance that they would be persecuted—asylum seekers would need to establish a “reasonable possibility.” Under this standard, if the asylum officer believes that the odds of a successful asylum claim are a 50/50 toss-up, it must be rejected. This standard is currently used for other forms of protection from removal. In 2023, 65% of people passed their “credible fear interviews” for asylum, while 44% passed their interviews subject to the higher standard.

This heightened standard would be applied in a new 6-month process for migrants who present themselves at the U.S.-Mexico border without authorization to enter. This is in addition to expedited removal, which would also use the heightened standard. The bill ultimately requires all asylum seekers encountered at the border to be placed in either expedited removal or in this new process.

Asylum seekers who successfully pass the initial screening, called a “protection determination,” would be allowed to live in the U.S. but monitored under the government’s “Alternatives to Detention” programs. The government would have 90 days to conduct this initial screening at which an asylum officer could deny the claim, grant asylum or other protections on the spot, or pass the noncitizen through to a full “merits interview.” A merits interview must be conducted within an additional 90 days. Those with positive protection determinations, referred to a full merits interview, or who couldn’t be interviewed within 90 days, would become eligible for a work permit. Those whose claims are denied would be quickly removed.

The new process would be entirely overseen by U.S. Citizenship and Immigration Services (USCIS) with no role for immigration courts and very little judicial review of final decisions. Asylum interviews before USCIS are non-adversarial, unlike immigration courts, meaning that this could benefit asylum seekers. However, the lack of judicial review raises serious accountability and due process concerns.

President Parole Authority

One of the thorniest issues in the negotiations of this bill was the president’s parole authority. The Biden administration has used it to disincentivize migrants from taking the perilous journey to the U.S. This proposal doesn’t modify the application of parole beyond the southern land border. This means that the Biden administration’s parole programs—such as Uniting for Ukraine and for certain individuals from Cuba, Haiti, Nicaragua, and Venezuela—would not be impacted by the bill.

However, parole would be severely limited for noncitizens presenting themselves at the border. The bill would require that all migrants either be placed in expedited removal or the new protection determination process. This means that noncitizens who schedule an appointment through the CBP One phone app will no longer be paroled into the country, as is currently done. Given the nearly $6 billion allocated to Customs and Border Protection (CBP) in the bill, including hiring new Border Patrol agents, there is an assumption that a combination of the new expulsion authority and these new resources will provide CBP the capacity to successfully manage the southern border.

Legal Pathways in the Bill

The bill also includes some bipartisan measures that expand legal immigration. For example, more than 70,000 Afghan allies paroled into the country since 2021 could be eligible for conditional permanent residency after undergoing a rigorous vetting process. Conditional permanent residency would be retroactive, meaning that beneficiaries could have a shorter wait time to become citizens.

The proposal also provides an additional 50,000 immigrant visas per year for five years, with 32,000 for family-based petitions and 18,000 for employment-based petitions. This would be the first increase in immigrant visas since 1990.

“Documented Dreamers” would also receive some protections. These youths entered as dependents on their parents’ temporary nonimmigrant visas and are at risk of losing their visa eligibility when they turn 21. The bill would allow noncitizens who were dependents on a parent’s H-1B visa for at least eight years to receive a work permit and have their age “frozen” while their green card application is pending. While this doesn’t go as far as the bipartisan America’s Children Act, which provides a pathway to citizenship and protects youth under other nonimmigrant visa categories, it would provide security for many youth.

Lastly, the emergency supplemental bill guarantees access to counsel for children who arrive in the U.S. without parents and are 13 or younger and for those whom an immigration judge has found not competent to represent themselves. These innovations could open the door to future universal representation for all immigrants at risk of deportation.

What Next for the Bill?

It appears that the emergency supplemental request faces an uphill battle in the Senate as well as the House. Regardless of its future, this proposal has identified many of the key policy areas that need to be addressed, such as faster processing of asylum claims and expanded legal protections for certain vulnerable immigrants.

Unfortunately, the proposal misses the mark by failing to provide sufficient accountability measures and due process. Furthermore, its adoption of a broad expulsion authority, which seemed unacceptable just a few years ago, may only serve to normalize similarly extreme measures in future policy conversations about border management.

FILED UNDER: Biden Administration, Customs and Border Protection, Title 42, U.S.-Mexico Border