With the pandemic-related expulsion policy “Title 42” set to expire May 11, the House GOP introduced its first large-scale border and immigration package on Monday. The bill combines three separate bills into one, including a bill effectively ending asylum which previously passed out of the House Judiciary Committee. The package, which is set for a vote the same day Title 42 ends, would transform the U.S. immigration enforcement system and end the universal right to seek asylum.
Importantly, the House GOP bill is not expected to become law, as President Biden has indicated he would veto the bill, and there’s no chance it would get 60 votes in the Senate. However, the bill stands as an important sign of where the Republican party is heading as the issue of immigration heats up yet again.
What changes does the House GOP’s border package make to humanitarian protections?
First, the bill would effectively gut the current asylum system through changes to both asylum procedure and substantive asylum law. The bill would end the universal right to seek asylum by limiting it to people who arrive at a port of entry, and then restrict it further by banning asylum to any person who has traveled through a third country without having applied for and been denied asylum there. These two changes alone would effectively ban asylum for Cubans, Venezuelans, and anyone who is not from Mexico, doesn’t have a visa, or can’t afford a direct flight to the United States.
The bill would also bar asylum to dozens of new groups of people, including anyone who has lived in the United States undocumented for more than a year, or anyone who failed to declare even a penny of income to the IRS.
Next, the bill would revamp the standard for granting asylum for those few people who would still be eligible. For example, the bill provides that you could only win political asylum if your “political opinion” was about the control of a government. That means a Saudi women’s rights advocate who wasn’t advocating to overthrow the monarchy wouldn’t be eligible for asylum due to persecution on account of a political opinion. The bill also makes it harder for LGBTQIA+ people by requiring asylum applicants prove that laws targeting their protected characteristics would be used against them personally.
For those individuals who do go to ports of entry to seek asylum, the bill would make it harder for them to access the asylum process by banning the use of the CBP One app. And even if they do manage to access a port of entry, the Department of Homeland Security would be required to send them back to Mexico or hold them in detention centers.
The bill would also double down on detention by ordering DHS to restart family detention and hold parents and children together in detention centers. It would even order DHS to reopen all detention centers closed under the Biden administration, including the Irwin Detention Center where women were subject to abusive and unwanted gynecological procedures.
Beyond asylum, the bill would effectively end protections available to non-Mexican unaccompanied children, who are exempt from rapid deportation at the border and have a right to go straight to immigration court. The bill also makes it harder for unaccompanied children to win permanent status through “special immigrant juvenile status.”
The bill also takes aim at nonprofit organizations that assist immigrants. It would strip DHS funding from nongovernmental organizations and faith groups that provide shelter or transportation to migrants. As drafted, this could also hamstring DHS’s own operations, as the agency often relies on nongovernmental contractors to transport migrants. The bill would also bar all DHS funding for any NGO that provides immigration legal services to any noncitizen who is “inadmissible,” which includes everyone from asylum seekers to people who violate the terms of a visa. This would make it even harder to obtain legal counsel.
The bill would also end the use of humanitarian parole as it has existed since the 1950s, stripping from the Executive Branch a key tool to respond to emergency migration. In so doing, it would end the “Uniting for Ukraine” parole program, as well as President Biden’s parole programs for nationals of Cuba, Haiti, Nicaragua, and Venezuela.
Finally, the bill would order the State Department to actively negotiate with Mexico, Guatemala, Honduras, and El Salvador to reach so-called “safe third country agreements,” with the goal of preventing migrants from being able to stay in the United States.
What changes does the border package make to immigration enforcement?
The package would radically beef up immigration enforcement. At the border, it calls for hiring 2,500 new Border Patrol agents, and loosens polygraph testing requirements during this hiring surge. The bill would order DHS to resume building border that were under construction when Trump left office.
Troublingly, the bill would expand a current authority that allows DHS to “waive all legal requirements” necessary to build border walls. This “Real ID Act” waiver authority currently allows DHS to build border walls without undergoing environmental review or following standard procurement processes. Under the bill, DHS could waive all laws other than the Constitution to both construct border walls and “operate” all border infrastructure and technology.
The bill would significantly increase surveillance—a reality border communities are subject to every day. It requires that Border Patrol operate unmanned aerial vehicles such as drones or blimps 24 hours a day and would require CBP’s Air and Marine Operations to carry out 110,000 flight hours at the border each year to support Border Patrol. It would also require the agency to acquire and install new surveillance technology along the entire border, including AI-driven technology.
Inside the United States, the bill would create a new crime of violating the conditions of a visa and failing to leave the country. This new crime would not even require the violation to be intentional, meaning that it would even be a crime if someone were hit by a car and missed their flight home as a result. It would also make it a crime to enter on a visa and apply for asylum (as that would likely require overstaying), or for a foreign student to work one extra hour inadvertently. The crime would be punishable by up to 6 months in jail for a first offense and two years in prison for subsequent offenses.
Finally, the bill would radically expand the current employment-verification process by mandating the use of “E-Verify” across the country. Currently, employment verification is carried out through the I-9 process, which requires people to submit documents showing they are authorized to work. Under this bill, employers would have to run every person through a national database confirming their status. Prior audits of the E-Verify program have shown that it does not work. It produces a significant number of false positives and could prevent authorized workers from starting jobs.
What would the impact of the bill be if passed?
While the House bill is unlikely to become law, it’s clear that it suffers from a fundamental problem: a refusal to recognize that migration cannot be dealt with through enforcement alone Eliminating lawful paths to migration while beefing up enforcement would encourage more irregular migration and push migrants into riskier paths, without solving the underlying problems that are leading people to come to the United States for safety. The bill also ignores the realities of border enforcement by imposing impossible mandates on DHS without any increase in resources and without acknowledging that international cooperation would be required to carry out some of the bill’s harshest provisions.
There is a way forward. If we invest in our humanitarian protection systems, we can satisfy the promises we’ve made and still stand as a beacon of freedom and safety for people around the world. Rather than seeking a silver bullet to stop migration overnight, Congress should be focused on revamping our humanitarian protection system to ensure that it works.
FILED UNDER: Family Detention, Title 42