What Is the ‘Bipartisan Border Bill’ and How Would It Change the US Immigration System?

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The “bipartisan border bill” has been front and center in the presidential election, but it is often presented to the public without clarity on what the bill would actually do. In May, U.S. Senator Chris Murphy (D-CT) introduced S. 4361, the Border Act of 2024. This bill includes nearly identical provisions to a bipartisan immigration proposal introduced earlier this year.  Those provisions were negotiated jointly by a group of Republican and Democratic senators as a compromise on supplemental government funding. Although almost all Senate Republicans ultimately voted against the Border Act, most of the provisions in the bill previously garnered bipartisan support. If passed in the future, the Border Act would make significant changes to the U.S. immigration system.

The bill would take important steps to address the challenges posed by a higher number of people arriving at the U.S.-Mexico border. It would accelerate the screening time of migrants arriving at the border and provides an influx of funding to immigration agencies. It would also offer overdue protections to some vulnerable immigrant communities by expanding lawful pathways to status.

However, the bill would also severely restrict a person’s right to seek asylum by rapidly expelling migrants in a manner that could jeopardize security and lead to further mismanagement. It additionally funds an expansion of the broken immigration detention system without increasing oversight. While the bill offers a glimpse into what effective bipartisan solutions to the U.S. immigration system could look like under a future administration, it also borrows failed policies from the past.

1. Creates a New Border Expulsion Authority for the President

The Border Act would give the president the authority to bar access to asylum or rapidly expel any person who enters the United States between a port of entry unless they meet a narrow exception. This expulsion authority is similar to the one currently in place under a recent rule issued by the Biden administration that also expels most people arriving between ports of entry when border crossings reach a certain number. Under current U.S. law, any person physically present in the United States has a right to apply for asylum, regardless of where or how they enter, so this rule faces ongoing litigation in the courts. This bill would change that. Under the Border Act, Congress would give the president authority by law to use this expulsion authority for any person who enters between ports of entry.

• This new expulsion authority would be triggered when border encounters reach set levels. When daily levels reach 4,000 over a 7-day average, the president and the Department of Homeland Security (DHS) have the discretion to exercise this new expulsion authority. But when encounters reach 5,000 over a 7-day average, or 8,500 on any single day, the president would be required to use this expulsion authority.
• Migrants arriving between a port-of-entry would be expelled unless they “manifest” a fear of persecution or torture if returned. A recent rule by the Biden administration similarly expels people unless they meet this vague and hard-to-enforce “manifest” exception. In practice, for many reasons, this test fails to identify people who have genuine fears regarding return.
• The expulsion authority would not “shut down” the border. Ports of entry would remain open for people with U.S. passports, valid visas, and other forms of entry documents. These ports will also continue to process at least 1,400 people daily through the CBP One app.
• People expelled under this authority could be sent to Mexico regardless of their country of origin. This means that large numbers of expelled asylum seekers could be forced to wait on the Mexican side of the border in unsafe, unsanitary conditions allowing cartels to intervene and jeopardize the security of both migrants and Americans in U.S. border communities. In order to carry this out, Mexico would have to agree.

The president and executive branch would have significant discretion over how to implement this new expulsion authority, and the new rapid removals would not be subject to review. In practice, this would mean that on any given day, asylum seekers may have no idea whether they would be banned from seeking asylum in the U.S.

2. Speeds Up Asylum Processing at the Border and Creates a More Restrictive Standard

The bill seeks to decrease the overall time it takes to process claims for asylum or humanitarian protection for those arriving at the border who are not immediately expelled. This is to address delays and backlogs that historically have added to pressure and mismanagement at the U.S.-Mexico border.

• Under the bill, nearly all arriving at the border who are not expelled would be placed into a faster process for asylum screening and have to meet a higher standard. A migrant will receive an initial asylum screening either through a new process called a “protection determination” or an existing process called “expedited removal.” Under either system, the bill heightens the legal standard a person must meet to get to the next stage of making a claim for protection which would ultimately prevent many more people from making their case for asylum. Those who fail would be quickly removed.
• The new asylum screening process, “protection determination,” occurs over a rapid 90-day period. Those who receive a positive determination would be eligible for a work permit and they will proceed to have their asylum claim adjudicated.
• The new “protection determination” process eliminates judicial review and oversight by immigration judges. The process is overseen almost entirely by U.S. Citizenship and Immigration Services (USCIS) employees with no role for immigration courts and very little judicial review of final decisions, creating a quicker appeals process while increasing the likelihood of government errors leading to people being sent back to persecution.

Although these provisions will speed up the processing of asylum screenings for people arriving at the border, they will also make it more difficult for eligible asylum seekers to qualify and would likely increase denials of humanitarian protection to many who are in need.

3. Maintains the President’s Humanitarian Parole Authority

The Border Act retains the president’s authority to grant humanitarian parole on a case-by-case basis and affirms the use of such parole for recent programs like those created for Ukrainians, Cubans, Haitians, Venezuelans and Nicaraguans. These parole programs have been a critical tool for reducing the number of migrants at the border and offer humanitarian protections.

4. Provides Some Critical New Legal Pathways and Protections

The bill also includes important measures that expand pathways for legal immigration. Expanding pathways and protections can help alleviate the number of people arriving at the border and pressure on the U.S. asylum system. The bill:

• Would create new lawful pathways for some Afghan nationals. More than 70,000 Afghan allies paroled into the country since 2021 could be eligible for conditional permanent residency and would face a shorter wait time to become a citizen.
• Would provide a minor increase in green cards. 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. However, given that there were over 7.6 million people waiting in visa backlogs as of November 2023, an increase of 250,000 visas over five years would be a drop in the bucket.
• Would create protections for children who age-out of their H-1B status. 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.

5. Increases Funding for Several Key Agencies But Includes Dollars to Expand Immigration Detention and Build the Border Wall

The bill would provide approximately $20 billion for several federal agencies to increase border management and migrant processing capacity and reduce the excessive case backlogs that are delaying employment, family, and humanitarian visas. These dollars would support the hiring of new CBP officers, asylum officers, and immigration judges; support dedicated efforts to combat fentanyl and other drug smuggling; and offer $930 million to cities providing services to new migrants. This funding would be a substantial boost to the asylum system and would likely have a significant impact in reducing backlogs and lowering wait times.

However, the bill would also give $3.2 billion to ICE to expand its immigration detention system to 50,000 beds, which is an increase from its current capacity of 41,500 beds, despite over 30 people dying in detention due to poor conditions this year alone. This is an increase of 47 percent from the 34,000 beds allocated in 2023, 2022, and 2021. The bill additionally requires continued construction of the Trump-era border wall.

Regardless of its future, the Border Act identifies many of the key policy areas that need to be addressed, such as faster processing of asylum claims, expanded legal protections for certain vulnerable immigrants, and the dire need for more effective management of the current challenges at our southern border. But given the stakes, greater efficiency should not require cutting corners on due process or adopting overly restrictive policies at the border.

FILED UNDER: immigration legislation