Trump Didn’t Kill the Senate Border Security Deal — the Deal's Provisions Did

By Elizabeth Jacobs on February 27, 2024

President Joe Biden and multiple news sources have blamed the failure of the Senate’s recent border bill on Republicans’ desire to keep the border crisis in the news or, some say, simply because they were instructed by former president, and now presidential candidate, Donald Trump to do so. I cannot tell you what former President Donald Trump has or has not said to congressional Republicans on this issue. What I can tell you, however, is that the Senate bill would have done little to improve border security or reduce illegal immigration into the United States. There’s good reason to believe, even, that it would have increased illegal immigration across the southern border.

Sen. James Lankford (R-Okla.) defending the border deal.

The most important point to understand is that the Senate bill did not even attempt to address the known pull factors for illegal immigration across the southern border. These pull factors include, principally, the near-guarantee of release into the United States after apprehension by a U.S. Customs and Border Patrol (CBP) officer.

Migrants can expect a near-guarantee of release for a few reasons. Primarily, an almost 30-year-old court settlement prohibits the U.S. Department of Homeland Security (DHS) from detaining migrants who arrive to the United States with a child, or as a family unit, for more than 20 days. At the time the settlement was issued 20 days could be reasonably expected to complete immigration proceedings for illegal border-crossers. Given today’s immigration court backlogs, however, it is nearly impossible to provide a final decision on an alien’s immigration case in 20 days.

Second, DHS, under Biden administration leadership, has done nearly everything in its power to ignore federal laws that requires DHS to detain illegal entrants pending completion of their immigration proceedings. Section 235 of the INA is clear that aliens who submit credible fear claims “shall be detained” pending the completion of their proceedings. Inadmissible aliens who do not demonstrate a “credible fear” of return must be removed “without further hearing or review” if they are placed in what is known as expedited removal proceedings or detained pending completion of standard removal proceedings.

The law only allows DHS to avoid detention altogether if it chooses to return an alien who crossed the southern border to Mexico to wait for an (expedited) immigration court hearing, consistent with section 235(b)(2)(C) of the INA. The Trump administration implemented this law under a program called the Migrant Protection Protocols (MPP), more commonly known as “Remain in Mexico”. The Biden administration here, too, has refused to utilize this existing border security tool.

President Biden denounced the policy as “dangerous” and “inhumane”. Despite this, the Biden administration, under Secretary Mayorkas’ leadership, has created what might be called a “wait in Mexico” policy of its own, requiring migrants to wait in northern Mexico to schedule an appointment using DHS’s new CBP One app. The difference with Biden’s policy, however, is that instead of placing a migrant in front of an immigration judge on an expedited schedule, as MPP required, the Biden administration’s program simply allows the migrant to receive parole when their appointment comes up, be released into the United States, and given an employment authorization document (EAD) that may be valid for up to five years. The Biden administration policy, on its own, created a new pull factor for illegal migration.

The Senate bill was never offered as a good-faith compromise. It was offered to provide the president cover to say, “Well, I tried.”

The Cato Institute, which advocates for mass immigration and open borders, has even exclaimed that Mayorkas’s CBP One scheme is “Worse than Trump’s ‘Remain in Mexico’”. Cato’s David Bier wrote, “Under the Biden administration’s Wait in Mexico policy, immigrants and families dumped back into Mexico would not even receive a hearing date to await. They do not enter the asylum process at all. All they get from the Biden administration — beyond a push in the back on their way out the door — is the vague promise that at some undefined future time this administration will do ... something to make things better.” Bier acknowledged that under Trump’s Remain in Mexico policy “an immigration judge could at least theoretically grant [a migrant] asylum and entry into the United States”. (Under the Trump administration, Remain in Mexico cases were placed on the immigration courts’ expedited docket, prioritized before removal proceedings of non-detained aliens, and often decided within a matter of weeks or months.)

Third, the Senate bill did nothing to address DHS’s abuse of its parole authority. Congress has strictly limited circumstances in which DHS may lawfully parole an alien into the United States and crafted the parole statute such that it may only be used “sparingly”. Specifically, the statute only permits DHS to parole an alien temporarily into the Untied States, on a case-by-case basis, for urgent humanitarian or significant public benefit reasons.

The Biden administration has taken this small loophole in immigration law and turned it into a black hole. In addition to permitting aliens to schedule their unlawful arrival to the United States using the CBP One app to specifically request parole, the administration has also created numerous programs to allow migrants to apply for parole from home if they are not eligible for a visa to the United States. These policies allow migrants to fly directly to U.S. airports, receive parole, receive work authorization, and be added to historic immigration court backlogs — in some cases, simply by virtue of having relatives in the United States. In other cases, they allow aliens from certain countries to jump the line and enter the United States based on green card eligibility, while nationals from all other countries who may also be eligible must wait abroad.

Even if an alien has not formally applied for parole using CBP One, they may be paroled out of detention and released, again with work authorization, simply because DHS has determined it is not in the “public interest” to detain the alien, despite the federal law’s mandates. Resource constraints and space may also provide DHS a justification (albeit a legally inadequate one) to release migrants CBP has apprehended who have entered illegally.

Finally, as I wrote about in detail earlier, the availability of work authorization in and of itself is a pull factor for illegal immigration and fraudulent asylum claims. Under current law, aliens who submit an asylum claim may apply for work authorization after 180 days. (The waiting period was designed to deter the submission of fraudulent claims at a time when 180 days was reasonable for DHS to process the claim. That, again, is no longer the case.) Aliens who receive parole may apply for work authorization immediately. To make matters worse, the Biden administration has prioritized the adjudication of work authorization applications for those with parole over other (often legal) applicants who request EADs.

The Senate bill did nothing to address this, either — and might have significantly increased this incentive by allowing DHS to grant work authorization immediately to migrants who enter illegally and submit an asylum claim.

What Would the Senate Bill Have Done, Then? Well, first, it would have given a lot of money to DHS and NGOs to process migrants, i.e., further funding many of the institutional problems that have allowed the crisis to grow to the scale it has.

Second, it would have allowed DHS to remove ICE and immigration judges from the asylum process altogether by requiring USCIS asylum officers (who typically only screen migrants for credible fear cases, not make final decisions on their cases) to release migrants from detention and allowed them to make final decisions on those cases. It would have also provided additional funding to the USCIS asylum division to do so because the asylum division is already underwater and experiencing historic backlogs. (Sources from USCIS tell me that the affirmative asylum backlog (i.e., asylum cases that are not filed as a defense to removal, but often by aliens who already have lawful immigration statuses) alone has already exceeded one million cases, for the first time ever. That means that an applicant who files an affirmative asylum application today may not receive a decision on their case for as long as a decade.)

As my colleague Andrew Arthur has written about extensively, asylum officers have meaningful incentives to rubberstamp asylum applications. Moreover, asylum officers are not required to have law degrees (many, in fact, do not), but will be asked to make complex and final legal decisions that cannot be appealed by an ICE attorney if an application is erroneously granted.

Third, the Senate bill tried to spend another $1.29 billion on the flawed Alternatives to Detention (ATD) program and provide nearly $7 billion in funding to NGOs and state or local governments to provide housing, transportation, medical care, and other services to migrants, and even foreign governments, as my colleagues Jessica Vaughan and Jon Feere explained in early February. In short, the bill would have expanded what we sometimes call the “illegal immigration industrial complex.” Nothing about this is border security. Rather, it was designed to streamline illegal immigration and obscure the crisis from American voters.

House Republicans were right to declare last month that the bill would be “dead upon arrival”. They didn’t need Donald Trump to tell them to kill it.

President Biden, likewise, cannot hide behind the Senate bill to claim to be tough on border security. The Senate bill was never offered as a good-faith compromise. It was offered to provide the president cover to say, “Well, I tried.”