Analysis Of Immigration Issues In Border Talks Shows High Stakes

Analyzing the issues in the Senate immigration talks shows the high stakes and long-term challenges of Congress approving military aid to Israel and Ukraine. Congress has consistently voted for military aid to other countries when it was considered in America’s foreign policy and national security interests without tradeoffs on domestic policy issues.

A significant dilemma: Republican proposals, if enacted, might increase migrant hardships, but history shows harsh enforcement policies have failed to reduce illegal immigration. That means a deal to approve aid to Israel and Ukraine for one year almost guarantees future assistance would require passing increasingly severe immigration laws. Given the refugee crisis in the Western Hemisphere, including over 7 million people fleeing Venezuela, only expanded legal pathways and refugee processing will likely reduce illegal entry.

The Unlikely Tradeoffs

House and Senate Republicans say unless their demands for new immigration measures are met, they will oppose further aid to Ukraine in its war against Russia, which launched a full-scale invasion against Ukraine, a smaller, democratic nation, in February 2022. The Biden administration hoped to pass a spending bill that combined border funds and aid to Israel, Ukraine and Taiwan. The GOP demands represent the first time one political party has conditioned its support for a significant national security initiative on changing U.S. immigration law.

“Speaker Mike Johnson told other congressional leaders late last week that he won’t pair Ukraine aid with anything less than H.R. 2, according to three sources familiar with the matter,” reported Punchbowl News on December 4, 2023. If that is the case, the House bill was intended to end aid to Ukraine. H.R. 2 contains the most controversial immigration reforms Congress has considered in at least 50 years, including mandatory government E-Verify before any worker starts a job in the U.S., preventing eligibility for asylum in the vast majority of circumstances, eliminating longstanding executive branch parole authority and building Donald Trump’s border wall. The bill passed the House with no Democratic votes.

Senate Republicans have stood in solidarity with their House counterparts by insisting on significant immigration changes to support a military aid spending bill. Sen. James Lankford (R-OK) and Sen. Thom Tillis (R-NC) have said Senate Republicans want most, but not necessarily all, of the immigration measures in the House bill. Lankford is the lead Senate Republican negotiator.

A Western Hemisphere Refugee Crisis

While many lawmakers have complained about illegal immigration, the United States is experiencing a refugee crisis. Today, most individuals and families from countries undergoing political and economic crises cross the border and turn themselves in because no lawful path to entry is available. That is the primary source of illegal entry.

Over 7.7 million people have left Venezuela because the government has destroyed the economy and political system. Many have gone to Colombia and other countries. Republican lawmakers have often spoken about opposing socialist policies. Venezuelans dislike socialist policies because they have lived through and suffered the consequences of those policies.

The situation is unprecedented and requires different solutions than in the past. In FY 2000, Mexicans seeking work accounted for more than 98% of Border Patrol apprehensions at the Southwest border. In FY 2023, Mexicans represented only 28% of Border Patrol encounters.

Veteran journalist Ioan Grillo identifies five forces driving people north: hunger, tyranny, “crime wars,” coyotes and information. “It’s wrong to claim that nobody arriving at the border is a refugee, as many have very legitimate claims of asylum,” writes Grillo. “Yet it’s also wrong to say there aren’t any economic migrants. Or that people don’t flee both poverty and bullets. Hunger has always been a key force driving migration.”

The people arriving at the U.S. border today resemble the Irish who fled to America in the 1800s and the Jews who sought refuge from Tsarist Russia. After the Potato Blight of 1845, entire families began immigrating to the U.S. from Ireland, notes the Library of Congress. Many Jews faced individualized fears of persecution under Russia’s tsars, but others were concerned for their children’s future or unable to earn a living due to lawlessness and government policies.

The Demand To End Parole Authority Will Likely Increase Illegal Immigration

Republican negotiators have fixated on eliminating the executive branch’s authority to issue humanitarian parole. The recently passed House bill (H.R. 2) would prohibit parole as an alternative to detaining or expelling all asylum seekers and end the current programs allowing up to 30,000 entries a month for Cubans, Haitians, Nicaraguans and Venezuelans with a U.S. sponsor. The bill also eliminates programs for Afghans and Ukrainians.

Upcoming research from the National Foundation for American Policy, where I work, shows the Biden administration’s humanitarian parole programs have been far more effective in reducing illegal entry than the Trump administration’s enforcement-only policies. Border Patrol encounters declined by 60% for Cubans, Haitians, Nicaraguans and Venezuelans as a group between December 2022 (the month before the parole programs started) and October 2023. For all non-parole countries, Border Patrol encounters increased by 12% during this period.

The case for parole programs grows stronger after accounting for the unique situation of Venezuelans. Illegal entry by Cubans and Nicaraguans (as measured by Border Patrol encounters) declined by over 90% after Biden officials introduced the parole programs. Haitian numbers remained low. Border Patrol encounters for Venezuelans fell significantly in the first three months of the parole programs but rose starting in April 2023 because program rules limited admissions to 30,000 a month and required an unexpired valid passport.

Although parole can result in work authorization, it is a short-term solution. The Biden administration has been slow to set up refugee processing outside the country to funnel migrants into a traditional legal pathway. Human rights advocates note individuals admitted as refugees, unlike parolees, can become permanent residents.

GOP Proposals Are Not Operationally Realistic

GOP negotiators also want to end the executive branch’s authority to grant parole at ports of entry. Individuals who come to a port of entry using the CBP One app are often paroled into the country and given a notice to appear. They can later pursue an asylum claim. The number of migrants has affected policies.

Theresa Cardinal Brown, who served as a senior official in U.S. Customs and Border Protection and is now at the Bipartisan Policy Center, has not seen Republicans make realistic legislative proposals on parole. If border personnel cannot use parole, they either need to detain people, including families with children, or send them to Mexico under Title 42 expulsion authority or Remain in Mexico, neither of which now exist.

“To reestablish these two programs or authorities would require Mexico’s agreement, and the Mexican government has said categorically it will not restart Remain in Mexico,” said Brown. It’s also unclear if Mexico would accept people returned under an authority similar to Title 42, a public health authority used during Covid-19 that allowed the U.S. government to expel individuals without the ability to claim asylum.

In January 2023, the Biden administration announced that Mexico agreed to accept expulsions of Venezuelans, Cubans, Haitians and Nicaraguans in conjunction with the parole programs for those nations. If, as Republicans insist, the parole programs end, Mexico likely will no longer accept returnees from those countries.

With U.S. immigration authorities controlling approximately 40,000 detention spaces and U.S. border personnel encountering about 241,000 migrants in October 2023 alone, detaining (for months) everyone who crosses the border or comes to a port of entry is not realistic.

“The types of absolute mandates being proposed are not operationally feasible,” said Brown. She notes if it’s true releasing people encourages, even on the margin, more people to come, the alternatives provided to government personnel must be realistic. Congress has never funded detention beds in the hundreds of thousands and is unlikely to do so.

Other Republican proposals are unlikely to make a dent in illegal entry. Raising the standard for “credible fear,” as proposed, would only make a difference if that’s how most people were entering the asylum process. Brown notes only a small percentage are accessing asylum that way. Most are requesting asylum as a defense against deportation after being given a notice to appear. Raising the credible fear standard would only matter if enough asylum officers were available to review initial credible fear claims, which is not the case.

Providing the authority to use expedited removal nationwide would allow expelling people already in the United States, possibly living in America for years. That raises due process concerns, say analysts, and is unlikely to affect the flow at the border since government personnel already use the authority as part of a recent asylum rule.

The Biden administration has indicated an openness for some type of transit ban on migrants who did not apply for asylum in a third country they passed through on the way to America. Such a ban, in effect, exists in a Biden rule now being challenged in court. However, that rule allows individuals to apply for asylum without a “rebuttable presumption of asylum ineligibility” if they enter through a port of entry with an appointment. The House-passed bill would go much further, making almost everyone who passed through another country ineligible to apply for asylum. The details of a “third country” transit ban will matter, notes Brown.

Trump Administration Policies Did Not Reduce Illegal Entry

The Trump administration enacted harsh enforcement policies, most famously separating children from their parents, yet apprehensions along the Southwest border, a proxy for illegal entry, more than doubled between FY 2016 and FY 2019. Illegal crossings fell in the first months of the Covid-19 pandemic, but Border Patrol encounters rose by over 300% between April and October 2020.

The Biden administration continued Trump’s Title 42 expulsion policy, but it was ineffective in reducing illegal entry. After the authority ended in May 2023, illegal entry declined for the next two months until migrant increases in the region raised Border Patrol encounters. Under Title 42, border crossers, including Mexicans, were often returned across the U.S.-Mexico border without being processed or facing legal consequences. Repeat violators skyrocketed. Without the ability to apply for asylum at a port of entry, individuals and families crossed the border and turned themselves in to Border Patrol agents.

Alternative Approaches And Legal Pathways

The United States needs workers to grow, note economists. If the argument is many individuals from Latin America are fleeing economic hardship and don’t have sufficiently strong asylum claims, Republicans could promote temporary work visas as an alternative. The Bracero program in the 1950s reduced illegal entry by over 90% as the number of Mexican farmworkers increased. Work visas have also reduced illegal immigration from Mexico in recent years. To address Democratic concerns, the work visas could be fully portable after an individual is employed for a short time by their initial U.S. employer.

NFAP examined 100 years of Border Patrol apprehensions data and found something counterintuitive to many lawmakers: Measures to tighten enforcement failed to reduce illegal entry, but policies that provided more legal paths to enter the United States worked.

For asylum reforms, along with increased funding for the system, lawmakers could consider the package of proposals in the bipartisan Dignity Act introduced by Reps. María Elvira Salazar (R-FL) and Veronica Escobar (D-TX). The bill (H.R. 3599) avoids more extreme measures while targeting problems in the current asylum system. The bill would expedite processing, establish “humanitarian campuses” for asylum seekers until their cases are decided, start immigration centers in Latin America for pre-screening, increase penalties for asylum fraud and make other reforms.

The Precedent Of Linking Security Assistance To Immigration Changes

A danger for Republicans is that once one political party uses a tactic, the other eventually adopts it. Will the precedent of demanding changes in immigration policy in exchange for supporting U.S. national security interests carry over to when a Republican becomes president? For example, if a future Republican president requests Congress approve urgent military aid to Taiwan after an attack by China, would Democrats now be within their rights to demand amnesty—the legalization of 10 million unauthorized immigrants—in exchange for their votes to send aid to Taiwan? The Republican president may argue Taiwan will fall without the aid, but Democrats could hold fast to their demands just as GOP lawmakers are doing with assistance to Ukraine.

If Ukraine is defeated, security experts warn Russia will set its sights next on Latvia, Estonia, Lithuania and Poland. Defending those countries would substantially raise U.S. military costs and, according to Secretary of Defense Lloyd Austin and House Foreign Affairs Chairman Michael McCaul (R-TX), increase the likelihood that U.S troops will need to defend against the Russian army in Europe.

Analysts warn that the United States failing to support Ukraine would represent a victory for Russian leader Vladimir Putin, damage U.S. credibility and encourage other nations to capitulate when facing threats from authoritarian governments. After Republican legislative efforts emerged to block support for Ukraine, The Daily Beast reported a prominent Russian commentator said, “This will be a great revelation to other countries. It is even more dangerous to be a friend of the United States than its enemy. In the end, they will abandon you, leaving nothing but the scorched earth on your territory.”

Sherri Crump

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