The Biden administration signaled on December 12 its willingness to make disastrous—and permanent—changes to asylum and immigration policy. Then, it would obtain temporary military aid for Ukraine, Israel, and Taiwan, informed Immigration Impact.
Public opinion varies widely regarding the potential alterations to asylum immigration policy, reflecting the diverse perspectives on immigration issues.
Top White House officials reportedly met with some key Senate negotiators. Sen. James Lankford (R-OK), Sen. Chris Murphy (D-CT), and Sen. Kyrsten Sinema (I-AZ), and (DHS) Secretary Alejandro Mayorkas. Unfortunately, media reports indicate the White House is willing to resurrect some Trump-era anti-immigrant policies. This would cut a deal on Ukraine funding. These include the nationwide expansion of a fast-track deportation process known as “expedited removal.” That’s the expansion of mandatory detention, and the immediate expulsion of migrants at the border under a Title 42-like authority.
Specifics are not public. However, here are the latest proposals reportedly under consideration. Also, this is the potential impact they could have on immigrants inside the United States and at our border.
Creating a New Title 42-Like Authority to Immediately Expel Migrants from the Border
Negotiators are discussing a provision permitting the DHS Secretary to restart expulsions of migrants at the border without seeking asylum. This is similar to the pandemic-era “Title 42” policy in effect from March 2020 to May 2023. One alternate version of this idea would require DHS to impose this new authority when border crossings rise above a specific level. Senator Tillis, another key negotiator, indicated that he would want this authority to kick in any time apprehensions rose above 3,000 a day. This happened during 28 out of 38 months in which Title 42 was in effect.
The implementation of Title 42-like authority at the border would be counterproductive at addressing migration. Instead, many individuals will return to persecution in their home countries or have to wait in Mexico indefinitely. Human rights organizations have tracked thousands of incidents of violence against migrants. These horrific incidents include murder, rape, and torture, during the Biden administration’s implementation of Title 42.
Reimposing Title 42 would also fail to seriously address border crossings. Analysis from the American Immigration Council shows that these expulsions don’t deter migrants from crossing the U.S.-Mexico border. During the Title 42 immigration policy, roughly one in three people apprehended after crossing the border were on their second or higher failed attempt to cross. This is confirmed by a recent analysis of DHS data from the Cato Institute. It revealed that ending Title 42 significantly reduced repeat crossings and halved so-called “gotaways.” Allowing any DHS secretary to shut the border to asylum seekers would lead to tremendous harm. It would also harm the basic principles of border management.
Dramatically Expanding Mandatory Immigrant Detention
The White House reportedly agreed to strip authority from DHS to release migrants in custody once across the border. While many of those individuals are currently eligible for release, language currently in H.R. 2, a Republican-supported bill would bar DHS from releasing any migrant—regardless of whether they are families or children.
The expansion of detention raises serious human rights concerns. It would represent a complete break from the promises President Biden made as a candidate and while in office. Within the confines of the already expansive immigrant detention landscape, there are numerous complaints. These include negligent medical care, unsafe conditions, unfair and discriminatory treatment of detained migrants, and excessive use of force. Barring the release of migrants seeking protection to deter migration would only increase these abuses.
In addition, the United States does not nor has ever had sufficient detention capacity to detain migrants crossing the border. Releases would have to continue anyway. By barring DHS from releasing migrants, Congress would also likely force the administration to restart family detention centers. Children would suffer in detention centers for months or longer.
Heightening the Standard for an Initial Asylum Screening
Negotiators are contemplating heightening the standard used for initial asylum screenings at the border. Currently, migrants must show that there is a “significant possibility” that they are eligible for asylum or similar protections. That applies to the Convention Against Torture. The standard, established in 1996, is a safeguard to prevent the U.S. government from breaking its international humanitarian agreements. It avoids erroneously deporting someone back to danger. If the migrant fails to show a significant possibility, they can swiftly face deportation through the expedited removal process.
As we’ve seen under the Biden administration, making the standard more difficult will significantly impact newly arriving migrants. Since May, the Biden administration has been implementing a heightened standard in this initial screening process. This takes place under its Circumvention of Lawful Pathways rule. Despite this, border apprehensions have risen significantly since this rule went into effect. This suggests that it has not been a deterrent.
Migrants often don’t know the nuances of asylum and immigration policy. They arrive at our border simply hoping to find safety. This means that raising the standard will only result in the deportation of migrants who may have viable asylum claims. This is true even if they can’t immediately prove their case to an asylum officer at the border.
Third Country Transit Asylum Ban
The specifics are still unknown. However, an asylum ban for people who travel through a third country before arriving in the US can be devasting. It would affect U.S. foreign policy and for immigrants arriving in this country on visas. For example, under a bill passed along party-lines in June, an untold number of individuals could lose access to asylum. This would happen simply by having an international layover on a flight to the United States. An Afghan national evacuated from Kabul via a U.S. military base in Germany could not apply for asylum by failing to apply in Germany first. A Ukrainian national stopping in London before arriving to the United States would face a similar problem.
Such a proposal ignores that many people may pass through a country where asylum is impracticable or unsafe. They would be barred from asylum as a result. In addition, this proposal will not have any impact on reducing migration. Under the Biden administration’s asylum restriction, ~90% of migrants who cross the border between ports of entry already cannot seek asylum. Imposing a statutory transit ban would most heavily impact individuals entering legally through ports of entry. This is also true if they fly into the country on visas.
Expansion of Fast-Track Deportations Nationwide
On December 8, news broke that the White House would be willing to support a nationwide expansion of “expedited removal.” This is a fast-tracked deportation process.
Currently, expedited removal is applied to noncitizens who present themselves at a port of entry without proper entry documents. The same applies to those who are apprehended at entry within 14 days and 100 miles of the border. This process severely limits due process. It allows low-level immigration officials (not judges) to immediately order deportations without the right to an attorney.
A nationwide expansion previously occurred under the Trump administration. Immigrants living in the United States for years could be swept up for swift removal with little legal recourse. Due to the expedited nature of this process, migrants with pending applications for relief could be removed. Black, Brown, and Indigenous communities could be unfairly targeted. This would also require significantly more resources for immigration enforcement. Interior enforcement of expected removal would involve significant operational complexities.
Crucially, expanding expedited removal to the interior would not reduce border crossings. The policy is already in effect at the border. It would, however, provide a powerful tool for a future administration aiming to carry out mass deportations.
It’s still unclear whether any of these concessions can make it through both chambers of Congress. The House GOP has indicated that they want significantly broader changes to immigration/asylum/border policy. Hardline GOP senators have reportedly said that even these policies are “not nearly enough.”
Senate negotiations have moved us closer to potentially seeing these Trump-era like policies becoming law. We need real policy solutions for asylum and immigration that don’t throw the immigrant community under the bus.
Advocacy groups are closely monitoring the developments surrounding asylum immigration policy, concerned about the potential consequences for vulnerable migrant populations.
The ongoing discussions about asylum immigration policy highlight the complexity of immigration reform in the current political landscape.
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