The Biden administration signaled on December 12 that it is willing to make disastrous—and permanent—changes to asylum and immigration policy to obtain temporary military aid for Ukraine, Israel, and Taiwan.
Top White House officials reportedly met with some of the key Senate negotiators, Sen. James Lankford (R-OK), Sen. Chris Murphy (D-CT), and Sen. Kyrsten Sinema (I-AZ), as well as Department of Homeland Security (DHS) Secretary Alejandro Mayorkas. Unfortunately, media reports indicate the White House is willing to resurrect some Trump-era anti-immigrant policies to cut a deal on Ukraine funding. These include the nationwide expansion of a fast-track deportation process known as “expedited removal,” the expansion of mandatory detention, and the immediate expulsion of migrants at the border under a Title 42-like authority.
Though specifics haven’t been made public, here are the latest proposals reportedly being considered and 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 currently discussing a provision that would permit the DHS Secretary to restart expulsions of migrants at the border without allowing them to seek asylum, 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 any time border crossings rose 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—something which 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 and, instead, will result in many individuals being sent back to persecution in their home countries or forced to wait in Mexico indefinitely. Human rights organizations have tracked thousands of incidents of violence against migrants, including 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 do not deter migrants from attempting to cross the U.S.-Mexico border. During the Title 42 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, which revealed that ending Title 42 significantly reduced repeat crossings and halved so-called “gotaways.” As a result, allowing any DHS secretary to simply shut the border to asylum seekers would lead to tremendous harm to both asylum seekers and to basic principles of border management.
Dramatically Expanding Mandatory Immigrant Detention
The White House has also reportedly agreed in principle to language that would strip authority from DHS to release migrants who cross the border and are taken into custody. While many of those individuals are currently eligible for release, language currently in H.R. 2, a Republican-supported bill that passed along party lines in the House earlier this year, would bar DHS from releasing any migrant—regardless of whether they are families or children.
The expansion of detention raises serious human rights concerns and 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 of 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 simply does not have, and has never had, sufficient detention capacity to detain all migrants crossing the border, so releases would have to continue anyway. But by barring DHS from releasing migrants, Congress would also likely force the administration to restart family detention centers, leading to children 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, including under the Convention Against Torture. The standard was established in 1996 as a safeguard to prevent the U.S. government from breaking its international humanitarian agreements by erroneously deporting someone back to danger. If the migrant fails to show a significant possibility, they can be swiftly deported through the expedited removal process.
As we’ve seen under the Biden administration, making the standard more difficult will have not have a significant impact on newly arriving migrants. Since May, the Biden administration has been implementing a heightened standard in this initial screening process under its Circumvention of Lawful Pathways rule. Despite this, border apprehensions have risen significantly since this rule went into effect, which suggests that it has not been a deterrent.
Migrants often don’t know the nuances of immigration policy and 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 but can’t immediately prove their case to an asylum officer at the border.
Third Country Transit Asylum Ban
Though the specifics are not yet known, an asylum ban for people who travel through a third country before arriving to the United States can have devasting consequences for 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 for simply having an international layover on a flight to the United States. This means that even an Afghan national evacuated from Kabul via a U.S. military base in Germany could not apply for asylum for failing to apply in Germany first. A Ukrainian national whose flight stopped in London before arriving to the United States would be similarly barred.
Such a proposal ignores that many people may pass through a country where applying for asylum is impracticable or which is not safe for them, and 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, roughly 90% of migrants who cross the border between ports of entry are already banned from seeking asylum. Imposing a statutory transit ban would most heavily impact individuals who enter legally through ports of entry or who 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,” a fast-tracked deportation process.
Currently, expedited removal is applied to noncitizens who present themselves at a port of entry without proper entry documents, or who enter without permission within the last 14 days and are apprehended within 100 miles of the border. This process severely limits due process by allowing low-level immigration officials (not judges) to immediately order deportations without the right to an attorney.
A nationwide expansion, like previously occurred under the Trump administration, could mean that immigrant parents, children, and spouses of U.S. citizens 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 and Black, Brown, and Indigenous communities could be unfairly targeted. This would also require significantly more resources for immigration enforcement, as interior enforcement of expected removal would involve significant operational complexities.
Crucially, expanding expedited removal to the interior would not reduce border crossings, as the policy is already in effect at the border. It would, however, provide a powerful tool for a future administration that aimed to carry out mass deportations of recently arrived migrants.
What’s Next?
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 asylum and border policy, and hardline GOP senators have reportedly said that even these policies are “not nearly enough.” With the clock ticking on holiday recess, the chance that Congress can hammer out a deal and make it law by the end of December is increasingly slim.
However, in the past few days, the Senate negotiations have moved us closer to potentially seeing these Trump-era like policies becoming law. We need real policy solutions that don’t throw the immigrant community under the bus.
FILED UNDER: Biden Administration, expedited removal
