On Monday, April 17, the House GOP introduced its first comprehensive border bill of the 118th Congress. The bill comes after months of disagreement within the caucus surrounding legislative responses to the border, with moderate Republican Rep. Tony Gonzales (R-TX) having branded a proposal by Rep. Chip Roy (R-TX) to mandate the expulsion of most asylum seekers as “unchristian” and unserious. Despite this disagreement among Republicans, the new proposal, which is set to be heard in the House Judiciary Committee on Wednesday, is even harsher than Rep Roy’s bill.
The bill, which would functionally end asylum as we know it, is poorly drafted. Its provisions often conflict, likely since it was produced by combining eight separate bills into one. It also imposes mandatory restrictions on asylum seekers that would be impossible to carry out without a major change in Mexico’s willingness to accept migrants. And it appears that little thought was put into the practical reality the bill would create. Though the bill faces little chance of passing, it’s a sign of how far Congress has moved against the basic principles of asylum in recent years.
Proposed changes to the asylum system
The bill mimics the Trump administration’s infamous December 2020 regulation (which was later blocked in court) that many deemed the “Death to Asylum” regulation, as well as other Trump-era regulations which were overturned in court. Among the changes proposed in the bill include:
- A total ban on asylum for any people who cross the border between ports of entry.
- A near-complete ban on asylum for anyone who fails to apply for asylum in a transit country on their way to the United States. This ban would apply no matter how long a person had been in the transit country and would even apply to people who fly to the United States on a visa with a layover in a third country.
- A near-complete bar on asylum for any individual who has been undocumented for more than one year, regardless of changed circumstances in their home country.
- New bars to asylum for individuals who have been convicted of a wide variety of crimes, including certain misdemeanors. The bars would also apply to conduct for which the person had never been convicted, and the law would allow immigration officials to probe beyond the facts found by a criminal court to apply a bar.
- Eliminating paths to asylum for people who are threatened by non-state actors, “rogue” government officials, or people who are persecuted by terrorist, guerrilla, or criminal groups. The restrictions would also limit asylum based on “political opinion” by narrowly defining “political opinion” to mean only those opinions relating to control of a country—meaning even an Afghan women’s rights advocate would not qualify.
- A bar on work permits for asylum seekers who cross between ports of entry, a limit on asylum work permit length to 6 months, and a mandatory minimum $50 fee to apply for asylum.
Taken together, these provisions would eliminate the U.S. asylum system as it has existed since the Refugee Act of 1980. Non-Mexican migrants arriving at the southern border would be effectively banned from asylum. And Mexican migrants would find themselves facing near-impossible odds to winning their cases given the substantive legal changes. Only those who have the money to buy a direct flight to the United States would have any real chance of access the asylum system—and even then, most would be unable to win given the proposed narrowing of asylum law.
Proposed changes to processing at the U.S.-Mexico border
The bill heavily restricts access to the United States in general. Two provisions of the bill would effectively make it impossible for anyone arriving at the border, even through ports of entry, to ever be allowed into the United States.
First, the bill would create a mandatory “Remain in Mexico” program that would apply to anyone arriving on land who the Department of Homeland Security (1) could not detain, or (2) could not send to a “safe third country.” This provision could apply to every migrant arriving at the border, regardless of their manner of entry, including unaccompanied children and families.
Second, the bill would require the DHS Secretary to “prohibit the entry” of any individual who does not have a visa, and who DHS cannot detain or send to a safe third country. This provision is largely identical to the controversial Chip Roy bill.
Proposed changes to treatment of families and children
The bill would mandate the use of long-term family detention centers for migrant families crossing the border. It’s unclear why this would be necessary since the bill also requires all asylum seekers be sent to Mexico. The bill would also prohibit states from attempting to require that any family detention center be licensed for child-care.
The bill would also strip unaccompanied children arriving from countries other than Mexico and Canada of their current right to proceed to immigration court. Under the bill, Border Patrol officials would be permitted to subject unaccompanied children to “expedited removal,” deporting them without ever seeing a judge. Only those children who pass a trafficking screening could avoid rapid deportation.
ICE would be required to place any undocumented sponsor of an unaccompanied child in removal proceedings, which would prevent many parents from coming forward to care for their children, leading to children being stuck in government custody potentially for months or years.
Proposed changes targeting visa overstays
The bill would create a new crime for people who overstay a visa by more than 10 days, or who violate a condition of their visa and don’t depart within 10 days. The crime would be punishable by up to six months in jail for a first offense, and up to two years in prison for a second offense.
Critically, this new law does not require that a person knowingly or intentionally overstay or violate a term of their visa. Under the law as written, a person hit by a car who ends up missing their flight home while stuck in the hospital could be criminally charged. Similarly, a student here on a visa who inadvertently worked one hour too many at a student job in a given week (thus violating the terms of the student visa) could end up in jail.
Proposed changes to immigration parole
Under current law, the executive branch has the authority to temporarily “parole” individuals into the country on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit.” For generations, presidents have used this authority to respond to humanitarian crises. Most recently, the Biden administration permitted Afghans evacuated after the fall of Kabul to reside in the United States. The Biden administration’s “Uniting 4 Ukraine” program is also a parole program.
The bill would effectively end this generations-long practice. It would do so by defining “urgent humanitarian reasons” to mean only individuals who are facing acute medical crises or who need to attend a close family member’s funeral in the U.S. and who can’t get a visa in time. It would also redefine “significant public benefit” to only mean individuals whose presence is required by the U.S. government for law enforcement matters.
This provision would strip the authority of the president to respond flexibly in humanitarian crises, or to avoid a miscarriage of justice in individual cases which may not fall with the narrow grounds of this new rule.
No real answer to underlying problems
Despite a wealth of harsh new policies, the bill fails to grapple with the underlying issues which have led to the situation today.
At no point does the bill acknowledge or even grapple with the rise of authoritarian regimes in the Western Hemisphere or the chronic lack of resources for humanitarian processing. Nor does the bill address the fact that there are at least 11 million undocumented immigrants in the United States, who a majority of Americans believe deserve a path to permanent legal status. And crucially, the bill’s over-reliance on other countries to accept migrants that we wish to deport would leave the United States at a distinct disadvantage in world affairs, forced to rely on others rather than fix our own problems.
It’s not that there are no new ideas out there. On Tuesday, Senator Menendez (D-NJ) unveiled a new proposal to address the long-term concerns at the border. His proposal combines a massive increase in funding to the adjudication systems along with an increased use of “expedited removal” and expedited processing for asylum seekers. And while there are serious concerns about whether this balance is right, his plan at least acknowledges that focusing purely on enforcement won’t work.
Rather than seek to punish our way out of current difficulties, Congress should instead work to fix the underlying problems with our crumbling humanitarian protection systems. Only then can we remain the beacon of freedom and safety that so many still believe in.
FILED UNDER: Biden Administration, U.S.-Mexico Border