February 5, 2024

Last night, the Senate unveiled the text of the long-awaited combined Senate border security/immigration reform and foreign aid supplemental bill. The text of the 370-page bill can be found here and the official 19-page Senate summary is available here. 

Immigration/Border Security Provisions in the Bill

New power to close the border when certain thresholds are reached

The legislation would give the federal government varying degrees of new temporary authority to expel migrants when the average number of daily crossings exceeds specified thresholds. If the daily average of migrant encounters reaches 4,000, the Department of Homeland Security would have the power to close the border to all migrants who do not have appointments to seek asylum. If the daily average of crossings reaches 5,000, the Homeland Security Department would be required to close the border to all migrants without appointments. This authority would also apply if crossings exceeded 8,500 on a single day. The border would remain closed until Homeland Security regains the ability to process all of the migrants encountered and operational control is reestablished. Migrants with appointments would continue to be processed.

The daily number of encounters triggering the new expulsion authority would be calculated on the rolling average over seven days.

Migrants who attempt to cross the border two times or more while it is closed will be banned from entering the United States for a year.

The enhanced border emergency authority would not apply to unaccompanied children, or migrants experiencing medical emergencies or an imminent threat to their lives.

Curtails “Catch and Release”

The deal would end the use of humanitarian parole of migrants, which is commonly referred to as “catch and release.” Specifically, it would require the detention or supervision of all migrants processed at the border. It would stop the use of parole to enter the country at or between points of entry.

While the President’s parole authority would be narrowed, he would retain the power to parole entire classes of migrants and would have greater authority to do so at airports.

The parole reform would not eliminate the paroled status of migrants who have emigrated through special programs for Ukraine and Cuba.

Reduces the immigration court backlog

The proposal would shift the adjudication of asylum claims from the immigration courts to specialized U.S. Citizenship and Immigration Services (USCIS) asylum officers and seek to have those claims assessed within six months. It would allow for the decisions of those asylum officers to be appealed and would prohibit law enforcement officers from conducting asylum screenings.

The bill does provide $3.99 billion to USCIS to fund 4,338 asylum officers, other personnel, facilities, and new operational requirements.

The proposal codifies the right to counsel for all asylum seekers in the expedited removal process, but it is unclear how sufficient numbers of counsel would be retained.

Raises standard for asylum and streamlines the asylum screening process

The proposal seeks to ensure that only migrants with legitimate asylum claims are allowed to stay in the country by consolidating the multiple initial screenings that migrants now go through into a single interview. It also raises the initial screening standard for an asylum claim by requiring an applicant to have a “reasonable possibility” of being persecuted or tortured in their home country. But it would not change the standard for proving a protection claim.

Asylum officers could approve clear and convincing asylum claims in the initial screening conducted to determine whether a claimant has a credible fear of persecution.

Work authorizations for migrants

Migrants who get a favorable determination of their asylum claims under the expedited asylum process explained above would immediately receive work permits. And family members of certain visa holders would also get work permits.

Migrants would also receive work permits if the screening process is delayed by administrative issues for 90 days after they enter the country. And in response to requests from New York and other cities that have received many migrants in recent months, the bill provides an additional 250,000 new family and work visas that would be distributed over the next five years.

New hiring authority for Department of Homeland Security

Under the bill, the Homeland Security Department would be given expedited authority to hire personnel to secure the border and speed asylum processing. Homeland Security would also get a cash infusion to staff up. The bill provides $6.8 billion for Customs and Border Protection, $7.6 billion for Immigration and Customs Enforcement, and $3.99 billion for Citizenship and Immigration Services.

Increased resources for cities accepting migrants

The deal would provide $1.4 billion in aid to organizations providing resources to migrants. It would help city governments and non-profit groups to provide essential services to keep migrant families from winding up on the streets.

Legal status for Afghan allies

While the deal does nothing for DREAMERS brought to the U.S. as children who are recipients of the Deferred Action for Childhood Arrivals (DACA) program, it does provide a pathway to permanent legal status for Afghan nationals who served as interpreters and in other support roles for U.S. troops during the two-decade war in Afghanistan.

Early Reaction to the Bill

President Joe Biden and Senate Democratic leaders quickly announced support for the bill, which the President characterized as “tough but fair.”

Senate Republican leaders need to decide quickly if they will support allowing a vote on the bipartisan bill, which requires determining whether a majority of their caucus supports the legislation. Shortly after release of the legislation, Senate conservatives, like Senator J.D. Vance (R-OH), wasted no time attacking the bill and making clear their opposition. Senate conservatives, like Sen. Josh Hawley (R-MO), are attacking Senate Republican Leader Mitch McConnell for working with Democrats on the measure. Senator Mike Lee (R-UT) called the bill an “unmitigated disaster” and said it was proof that Senate Republicans “NEED NEW LEADERSHIP — NOW.” Senate Republican leadership will have a better feel for where the caucus stands after a special briefing for their caucus on the bill this evening. 

House Republicans are also complicating the situation for Senate Republican leadership. Senators supportive of the deal will be discouraged by House Speaker Mike Johnson’s reaction to the bill, saying it is “worse than we expected” and promising that if it ever “reaches the House, it will be dead on arrival.” House Majority Leader Steve Scalise (R-LA) also restated House Republican leadership’s pledge that “The Senate Border Bill will NOT receive a vote in the House.” The House will focus instead this week on impeaching Homeland Security Secretary Alejandro Mayorkas and trying to pass a stand-alone supplemental package of aid for Israel—which would undermine the Senate package that combines aid for Israel, Ukraine, and Taiwan.

As expected, the bill is also opposed by some progressive Senators. Senator Bernie Sanders (I-VT) came out quickly against the package because it does not impose conditions on aid to Israel. Other Senate progressives oppose the deal out of concern it goes too far in reshaping asylum and parole. For example, Senator Alex Padilla (D-CA) issued a statement opposing the bill and calling its asylum and parole provisions “a new version of a failed Trump-era immigration policy that will cause more chaos at the border, not less.” Senator Padilla also objected to the bill because it “fails to provide relief for Dreamers, farm workers, and the other undocumented long-term residents of our country.”

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