What the border bill would and wouldn't do: EXPLAINED

ByAnalysis by Catherine E. Shoichet, CNN, CNNWire
Tuesday, February 6, 2024
Bipartisan Senate border deal faces an uphill fight to passage
For the first time in years, Republicans and Democrats have come up with a bipartisan plan to address the border.

WASHINGTON -- Just about everyone agrees that whatever US immigration system is supposed to exist at the southern border - and beyond it - is badly broken.

The number of unauthorized immigrants crossing the border keeps reaching record highs. The backlog of cases in US immigration courts has soared past 3 million. People trying to immigrate legally to the US face a maze of bureaucracy and lengthy delays.

A group of bipartisan senators and White House officials say they've negotiated a deal that would solve some of these problems. If passed, the measures would amount to some of the most significant changes in US immigration policy in decades.

RELATED: What's behind the historic, 'serious challenge' at the southern border

That's certainly a big if. While President Joe Biden has said he'll sign the legislation, former President Donald Trump is pushing GOP lawmakers not to pass it. And House Republican leaders have called it "dead on arrival" even if it clears the Senate.

Still, this is a moment when it's important to pay attention.

At a time when problems at the border often grab headlines, this deal - released Sunday evening after months of negotiations - offers a rare list of proposed solutions with a bipartisan bent.

"This is such a polarizing issue that the fact that some Democrats and some Republicans could come together is itself an event," says Muzaffar Chishti, a senior fellow at the nonpartisan Migration Policy Institute.

The proposed changes to the immigration system are tied to foreign aid for Ukraine and Israel. The border bill also comes with a big budget - including large amounts of funding for enforcement.

"The bill is probably the most extensive border funding and security package that we've seen in decades," says Greg Chen, senior director of government relations for the American Immigration Lawyers Association. "These are massive resources that will be given to DHS and other immigration agencies on the order of essentially $20 billion."

So let's take a look at several of the key provisions, how they're different from the current landscape and some of the criticisms that are already coming up about them.

And let's also look at some of the major things this deal doesn't address.

New emergency border restrictions

What's proposed: Once illegal border crossings reach a certain threshold, the Department of Homeland Security would be required to exercise a new emergency authority that bars migrants, except unaccompanied minors, from crossing the border between ports of entry. The authority would automatically kick in if crossings rise above 5,000 on average per day on a given week, or 8,500 in a single day.

The authority sunsets after three years and there are time limits on how many days it can be used.

How that's different from now: If passed, this would be the first time a numerical threshold is put in place to invoke emergency measures at the border, Chishti says. "We have never put in numerical triggers. That's important," he says. In the emergency authority scenario, the only way migrants could seek asylum would be at ports of entry, where they must schedule appointments using a government app. Currently US law allows migrants to seek asylum in the US no matter how they arrived in the country.

What critics are saying: Critics who are pushing for greater immigration restrictions argue these measures don't go nearly far enough. "The proposal would ratify ongoing illegal immigration at historically high levels," the Federation for American Immigration Reform said. On the flip side, immigrant advocacy organizations argue the measures that purport to stabilize the situation at the border will actually fuel more chaos and put vulnerable migrants in harm's way.

Major changes to asylum

What's proposed: Asylum officers from US Citizenship and Immigration Services will decide on the asylum cases of migrants at the border. The legal standard of proof for passing an initial screening will be higher. And those applying will also have to prove they could not have moved to another part of their country to avoid persecution. Those who pass initial asylum screenings will immediately be eligible for work permits. Those who don't pass the screenings can appeal to an asylum review board. If they lose their administrative appeal, which must occur within 72 hours, they will be ordered removed from the US without additional review. The process does not apply to unaccompanied minors.

How that's different from now: Currently US immigration courts largely decide asylum cases, and the court system is severely backlogged with more than 3 million pending cases. In some locations, it can take years to get an asylum hearing, and many people applying for asylum ultimately don't qualify. Those who pass initial screenings must be in the US for at least 180 days before they can obtain a work permit - something local leaders across the US have been criticizing as increasing numbers of migrants are arriving in their cities and struggling to support themselves. Those who lose their asylum cases in immigration court can appeal to judges on the Board of Immigration Appeals.

What critics are saying: Immigrant and refugee advocacy groups say the new measures would gut the asylum system and put people in danger. "This cruel deal trades the human rights of immigrants and asylum seekers for foreign military funding, and members of Congress should reject it," Amy Fischer, director of refugee and migrant rights for Amnesty International USA, said in a statement, calling the proposed policies "draconian and antithetical to human rights."

Growing use of 'alternatives to detention'

What's proposed: Expanding the use of Alternatives to Detention (ATD)

How that's different from now: The use of Alternatives to Detention, like ankle monitors and special cell phones used for check-ins with authorities, is already on the rise. This proposal would expand the use of these alternatives, as those who are allowed into the US to continue their asylum cases will be placed into the program.

What critics are saying: Alternatives to detention have already been drawing criticism from civil liberties organizations as their use by immigration authorities has grown. Critics who favor increased immigration restrictions say using alternatives to detention is another form of "catch and release" because it allows migrants to move to communities across the US while their cases are decided.

Some immigrants would get more protections. But many are left out

Several groups that have been lobbying hard for more protections from Congress made notable headway in this deal:

  • If it's passed, Afghan evacuees to the US who've been in limbo since the fall of Kabul in 2021 would get a pathway to citizenship.
  • Many so-called "documented Dreamers" who were brought legally to the US as children of parents with visas would also find themselves on more solid footing, becoming eligible for work permits and being allowed to remain part of their families' applications for green cards after they turn 21.
  • The bill would also provide federal dollars to fund legal representation in immigration court for unaccompanied minors under 13.

But there's a lot the bill doesn't do:

  • "Shut down the border" - As he touted the deal before its release, Biden said it would allow him to shut down the border when the number of illegal crossings passed a certain threshold. It wouldn't do that, although it is something some Republicans in Congress have said they'd like to see happen.
  • End humanitarian parole - The bill preserves the president's authority to designate humanitarian parole on a case-by-case basis. Biden has used the authority for Ukrainians, Afghans, Cubans, Venezuelans and Haitians, among other populations. Limiting the president's ability to grant parole had been a key demand of some Republicans during negotiations, but ultimately was not included.
  • Help DACA recipients - Immigrant rights advocates have little doubt that the days are numbered for Deferred Action for Childhood Arrivals, the Obama-era program that protects hundreds of thousands of undocumented immigrants who were brought to the United States s children. But that's a problem this proposed compromise wouldn't solve. "As we look towards 2025 and what will happen to DACA recipients, most likely at the Supreme Court when DACA is most likely ended, that conversation has to start now, and it still has to be as urgent as fixing the asylum system, as fixing the border," said Andrea Flores, vice president for immigration policy at immigrant advocacy organization Fwd.US.
  • Provide a pathway to citizenship for undocumented immigrants - In a telling sign of how far the tides of turned since the beginning of the Biden administration, measures like the pathways to citizenship for undocumented immigrants he proposed in 2021 are nowhere to be found in this proposed legislation. Immigrant rights advocates say that's a critical failure. Some lawmakers who favor greater immigration restrictions argue that's now a conversation that can't happen until the situation changes at the border.

Given the growing chorus of criticism on both sides of the aisle weighing in just a day after its release, this latest border bill may very well be as "dead on arrival" as some lawmakers have claimed.

But the bill has picked up some high-profile support from the National Border Patrol Council, the union that represents Border Patrol agents and has endorsed Trump in the past.

The left-leaning Center for American Progress also said it supports the effort, describing the Senate bill as flawed but adding "we can and should build on it to enhance protections for those most in need."

It would take 41 senators voting against the bill to sink the deal in a key procedural vote expected on Wednesday. Already 23 senators have signaled publicly that they are opposed to it.

At this point, the compromise's future is murky at best.

Still, even some of the bill's critics are saying they hope it will serve as a new starting point for deeper conversation and necessary additional reforms.

"I believe that the people that are willing to get in the room for as long as they did to hammer out differences, to come to some kind of consensus around ... what needs to be done, it's something that we have to commend. It's not easy to do politically or from a policy perspective, and it's something that we need to do a lot more of," Ben Johnson, executive director of the American Immigration Lawyers Association, told reporters on Monday. "There's a lot of chest-thumping in immigration - a lot of outrage. And not enough solutions."