Senate Border Proposals Would Do Nothing to Secure the Border

At least as reported, but news of the negotiations’ death may be ‘greatly exaggerated’

By Andrew R. Arthur on January 26, 2024

As I’ve reported, a bipartisan group of Senate negotiators have been discussing a deal to trade $61 billion in Ukraine war funding for border reforms. To paraphrase Mark Twain after reading of his own demise, reports of the death of those negotiations may be “greatly exaggerated”, but in any event the terms of those proposals as leaked to the media would do nothing to secure the border.

The Alleged Proposals. Leaks are a way of life in Washington, but surprisingly few details of what’s on the table in those Senate talks have been made public.

Perhaps that’s just exceptional legislative hygiene, but my guess is that Republicans and Democrats are still spit balling at this late stage and haven’t really coalesced around any concrete proposals.

That said, according to the Daily Caller, among the ideas being floated are: a 5,000 per-day cap on illegal entries, after which Biden “could invoke Title 42-esque authority” to turn back the rest; “amnesty to a ‘documented Dreamer’ class, taking care of 250,000 people whose parents replaced American workers under the deeply flawed H-1B guest worker program”; retention of Biden’s “mass parole” programs; a reduction in the period asylum applicants must wait to receive work authorization; and funding to provide for illegal migrants released into the United States.

The New York Times, on the other hand, reported on January 22 that a final deal on the Senate proposals was “near”, and that the terms would include not only that 5,000 per-day shutoff but also an expansion of funding for Border Patrol agents and USCIS asylum officers; amendments that “would make it harder for migrants to claim asylum”; expanded detention resources; and a process by which aliens would be removed more quickly.

The 5,000 Per Day Migrant Safety Valve. I’ll take both the Times and the Daily Caller at their word when they say the Senate deal would cap daily illegal entries at 5,000. Such a proposal would do little to secure the border, aside from defeatedly conceding that 1.825 million aliens coming to the United States annually (1.83 million during a leap year) is the “new normal”.

It’s not and shouldn’t be accepted as such. Between FY 2008 and FY 2018, Border Patrol agents at the Southwest border never apprehended more than 550,000 migrants in any given year — a rate of just over 1,500 per day — and in all of FY 2017, agents nabbed just 304,000 illegal migrants (an average of 832 per day).

In a March 2019 interview, President Obama’s DHS Secretary, Jeh Johnson, explained that when he was in charge: “If I woke up in the morning and apprehensions were more than a thousand a day, I was going to have a bad day.”

Former Secretary Johnson offered that insight because Border Patrol’s Southwest border apprehensions were then spiking and would eventually peak at just over 851,000 in FY 2019 (2,333 on average per day).

Trump responded to that surge by implementing the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, pursuant to which non-Mexican migrants apprehended entering illegally were sent back across the border to await their removal hearings.

Thanks largely to MPP, apprehensions fell from nearly 133,000 in May 2019 to just over 40,500 by that September — a nearly 70 percent decline in five months, but more importantly the difference between 4,286 daily apprehensions and 1,350.

As Johnson’s statements make clear, 1,350 daily apprehensions is still not that great, but those declines continued thereafter, with Border Patrol making just over 29,000 apprehensions in January 2020 (942 per day on average), even before Title 42 went into effect two months later.

But, of course, Biden quickly ended Remain in Mexico and the rest of the Trump policies that had brought the border under control.

Unless Senate negotiators are willing to quintuple not only the number of Border Patrol agents on the line but also the facilities and resources available to them, that 5,000 per-day cap is worthless. Such an expansion would likely cost about $100 billion (18.5 times the Border Patrol's current budget) when all the infrastructure is included, and if that figure’s on the table, it surely would have leaked. It hasn’t.

Not that any cap is necessary anyway to trigger a “Title 42-esque authority”, because the president already has one: section 212(f) of the Immigration and Nationality Act (INA), which allows the president to turn away any and all migrants that he sees fit.

As I have explained in the past, section 212(f) is Title 42’s “immigration twin”, only broader because it doesn’t rely on a public-health emergency for the president to invoke it. And, as the Supreme Court held in 2018, that provision:

exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that [section 212(f) of the INA] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA.

For Republicans, agreeing to a 5,000 migrants per day cap before the president invokes that authority is akin to negotiating with the kidnapper who has taken the nation’s border security hostage.

Expansion of Funding for Border Patrol Agents and USCIS Asylum Officers. While expanding the number of Border Patrol agents may do some marginal good, nothing suggests that the component has filled all 19,555 agent positions that it currently has available.

The last year for which CBP offers staffing statistics is FY 2020, at which point there were 19,740 agents total, fewer than 17,000 of them on the Southwest border. That is a decline from a peak of nearly 21,500 in FY 2011, and I note that the administration only requested 300 new positions in its latest budget request.

Given that Border Patrol staffing had already been declining for over a decade by the time Biden took office, and the deleterious impact the president’s border policies have had on agents’ morale, I’d find it hard to believe that the currently allocated number of agents are actually on the line.

Not that increased hiring would improve border security much, given that — as the House Homeland Security Committee reported in December — many if not most of them are stuck transporting and processing migrants before they are released.

Were the Border Patrol cadre expanded without some concomitant fundamental shift in the administration’s migrant release polices, there’s no reason to think that those agents wouldn’t simply be assigned to processing illegal entrants out of custody more quickly.

The same is even more true when it comes to expanding the number of asylum officers. As of the end of September, USCIS had managed to fill just 74 percent of the 1,028 officer positions it had available, despite the agency’s “ambitious schedule to hire and train new” ones.

Even if asylum officer funding were doubled, and USCIS managed to fill all of those slots, there would still be fewer than 2,100 of them to both adjudicate affirmative asylum applications (filed by aliens present in the United States but not in removal proceedings) and to perform credible fear interviews for aliens in expedited removal proceedings.

According to the USCIS Ombudsman’s 2023 Annual Report, the agency had a backlog of 842,000 affirmative asylum applications pending as of the end of June, a figure that was expected to grow to one million by the end of FY 2024.

Add to that workload potentially 5,000 new daily credible fear interviews — possible if not likely under the per-day migrant cap above — and the affirmative asylum process would become little more than an amnesty. Congress would need to add at least 10 times as many officers as there are currently to handle the flow, but as the foregoing reveals, the agency is struggling to fill the vacancies it has already.

Not that the Biden administration currently uses expedited removal as it should or could be expected to expand its use.

Expedited removal allows immigration officers — both CBP officers at the ports and Border Patrol agents between them — to quickly deport aliens who are inadmissible because they have fraudulent documents or no documents at all (including illegal entrants).

Congress added that tool to section 235(b)(1) of the INA in 1996 precisely to allow CBP to address border meltdowns like the current one, but despite that fact, Biden’s CBP subjected fewer than 6 percent of all illegal entrants at the Southwest border to expedited removal in FY 2023.

Making It Harder for Aliens to Claim Asylum. As noted, the Times article indicates that the Senate proposals include some reforms to make it harder for aliens to claim asylum. With respect to that one, the devil’s in the (undisclosed) details.

Likely, it means codifying in statute the Biden administration’s regulatory “Circumvention of Lawful Pathways” (CLAP) rule, which DHS published on May 16.

The CLAP rule imposes a “rebuttable presumption” that aliens who cross the border illegally are ineligible for asylum. The problem, as my colleague Elizabeth Jacobs and I have explained in the past, is that the rule is so shot full of exceptions that it is somewhere on the spectrum of “easily gamed” to “functionally worthless”.

That rule also does nothing to stop the 1,450 aliens per day who currently are allowed to preschedule their illegal entries at the ports of entry using the CBP One app, the vast majority of whom (95.8 percent according to congressional disclosures) are quickly paroled into the United States.

In fact, the CLAP rule codified this (facially illegal) Biden scheme, which went into effect in January 2023, but do the math and you will see that it allows the administration to usher 500,000 illegal aliens per annum into the United States through the ports of entry. If the Senate deal codified the CLAP rule, including the CBP One app scheme, it would essentially blow away congressional immigration limits.

Expediting the “Expulsion of Migrants Who Lack Lawful Reasons to Stay in the Country”. The Times’ vague assertion that the Senate proposal would “expedite the expulsion of migrants who lack lawful reasons to stay in the country” could mean any number of things, but it raises the specter the deal may codify the Biden administration’s so-called “Asylum Officer Rule”, which authorizes USCIS asylum officers to grant asylum to border migrants following “nonadversarial interviews”.

That rule, which was published in March 2022, broke with more than two decades of practice and precedent, under which asylum applications for aliens who had been subject to expedited removal could only be heard by immigration judges in removal proceedings.

Those removal hearings are “adversarial”, as an ICE attorney is present to confront the alien’s claims, cross-examine the alien and any witnesses, and offer country conditions and impeachment evidence. The ICE attorney can also appeal an erroneous grant to the Board of Immigration Appeals, a protection that the Asylum Officer Rule lacks (the decisions are instead reviewed by USCIS supervisors).

As I noted in December, asylum officers under that rule granted asylum at nearly double or triple the rate that immigration judges had in the same class of border cases. Why “double or triple”? Because asylum officers had “administratively closed” (read: “shelved”) a third of those cases, even though the rule itself provides no means by which they could do so.

The expressed advantage of the rule is that it is supposed to speed up the adjudication of border asylum claims, and while it definitely expedites the rate at which border aliens are granted asylum, there’s no guarantee that the rate at which they are denied asylum and removed would be any quicker.

It’s possible that some unwary GOP senator may be sold this plan as a cure-all for border security. It’s not, and in fact it creates a magnet for illegal migrants by expediting the process under which they receive work authorization. Not to say that senators have taken that bait, but the Times’ description is mighty peculiar.

Dictating Terms, Not Offering Concessions. At the outset, these negotiations seemed like a worthwhile endeavor, particularly if the parties were able to force real border reforms on the White House. Again, I have no idea whether the Daily Caller and Times reporting is correct, but if it is, my optimism was misplaced.

Immigration and the border are increasingly dragging down the president’s political prospects, and his party’s with him. The White House and Senate Majority Leader Chuck Schumer (D-N.Y.) should have been grateful that Republicans were willing to offer them a lifeline.

That means GOP negotiators should have been largely dictating the terms of this deal, not offering major concessions to cajole the president into performing his duty to secure the border. As the “documented Dreamer” amnesty provision (assuming there’s any truth to it) suggests, that hasn’t happened.

Republicans historically have been in their strongest position to secure immigration and border reforms when Democrats are desperate for funding. That’s how the 1996 act creating expedited removal got passed, and — as my colleague George Fishman recently explained — the “REAL ID Act of 2005” came into being. That should be true in these negotiations, too.

On January 24, Capitol Hill online tipsheet Punchbowl News reported:

In a private Senate Republican meeting on Ukraine, McConnell said effectively that time and the political will to pass a bipartisan immigration and border security compromise are quickly running out — and may have actually run out already.

McConnell told GOP senators that before border security talks began, immigration policy united Republicans and Ukraine aid divided them. “Politics on this have changed,” McConnell said of solving the crisis at the U.S.-Mexico border. That’s because former President Donald Trump wants to run his 2024 campaign focusing on immigration.

“We don’t want to do anything to undermine him,” McConnell said of Trump, a one-time collaborator turned nemesis.


The border-for-Ukraine construct always made sense in theory. But when lawmakers got down to details, the fault lines among Hill Republicans became glaringly obvious. These inter-Republican clashes once again laid bare how the GOP prefers to use the border crisis as a political talking point instead of solving the underlying problem. [Emphasis added.]

As with the reports from the Daily Caller and the Times, I have no idea whether that is accurate or not. I have every reason to believe that those negotiations remain ongoing.

The analysis there is heavily seeded with spin — Republicans may in part be playing politics, but so are Democrats. Biden’s border policies are wildly unpopular with Independents and Republicans, but Democratic voters still view them favorably, if not warmly. Why stop doing something your base favors?

At this stage — more than nine months out from the elections — the Democratic caucus likely feels little reason to dicker, so it isn’t. That will likely change.

The president could end the border crisis quickly by using section 212(f), reimplementing a version of Remain in Mexico, detaining more illegal migrants, and/or shifting his other policies. Based in these reports, nothing on the table would do anything to secure the border anytime soon. If I were the GOP, I also would be happy to allow the president to dig himself in deeper if the Democrats won’t help secure the border. No bill is better than a bad one.