WOLA: Advocacy for Human Rights in the Americas

Adam Isacson/WOLA

31 Jan 2024 | Commentary

Five Questions and Answers About the Senate Border Deal

Last October, the Biden administration asked Congress for a package of funding for Ukraine, Israel, border security, and other priorities. In the Democratic-majority Senate, where it takes 60 votes to move legislation forward, Republicans refused to support this request unless it included changes to U.S. law that would restrict the right to asylum, and perhaps other migration pathways, at the U.S.-Mexico border.

A small group of senators has been negotiating those changes since November. A bill may now be forthcoming.

1. What do we know about what’s in the deal?

According to media accounts, the Senate negotiators have agreed to change U.S. law to allow automatic expulsions of asylum seekers from the U.S.-Mexico border. While the exact language and numbers are subject to change, what is being reported is that expulsions would go into effect when apprehensions of migrants between border ports of entry exceed a seven-day average of 5,000 per day, or 8,500 on a single day.

Once apprehensions exceed this threshold, “migrants would be expelled indefinitely until crossings dipped below 3,750 per day, which would end the expulsion authority period,” the Washington Post explained.

“Expulsions” recall the pandemic-era Title 42 policy, which swiftly removed migrants—often across the border into Mexico—nearly 3 million times between March 2020 and May 2023, with almost no right to ask for asylum. (The new authority would not expel people who made appointments at ports of entry, or people who can prove fear of torture if returned.) There is no word on whether Mexico would agree to accept expelled individuals.

President Biden called this provision an “emergency authority to shut down the border until it can get back under control.” The deal would also establish a higher “credible fear” standard that asylum seekers would have to meet in screening interviews with asylum officers.

2. What is the human cost of this bill’s provisions?

Expelling protection-seeking migrants means sending at least some of them back to likely danger. As U.S. immigration courts’ asylum approval rates show, many people coming to the border are fleeing severe threats to their lives.

There is a word for knowingly sending protection-seeking people back to probable danger: refoulement, a human rights violation that the United States agreed not to commit when it ratified the Refugee Convention more than 50 years ago.

Refoulement was frequent during the Title 42 era. In addition to exposing some asylum seekers to the same perils they were originally fleeing, border expulsions placed them in new danger. Despite the difficulty of monitoring during the pandemic, Human Rights First and border-zone partners tracked 13,480 attacks—killings, rapes, kidnappings, assaults, robberies—against people expelled into dangerous Mexican border cities.

While increasing human suffering, these expulsion and “bottlenecking” policies also increase profits for organized crime and corrupt officials in Mexico. “Asylum seekers from Central America and beyond are paying up to $10,000 per person,” according to a November 2023 InsightCrime investigation, “while Mexicans are paying between $3,000 and $5,000.”

3. Would this actually deter migration?

“If that bill were the law today, I’d shut down the border right now and fix it quickly,” President Joe Biden said on January 27. But would a return to expulsions “fix” the border?

That did not happen during the Title 42 era, when migration at the U.S.-Mexico border skyrocketed to levels not reached in two decades. The border saw more repeat crossers and many new nationalities. The overall increase in migration was already underway when Donald Trump left office.

If Title 42 did not deter migrants during the pandemic, expulsions are unlikely to deter migrants now, and daily migration averages may never drop below the threshold necessary to “turn asylum back on again.” The expulsion authority could end up being permanent.

That doesn’t mean, though, that all migrants crossing in between the ports of entry would be expelled, considering that Mexico is unlikely to take all nationalities. The Department of Homeland Security (DHS) would not expel most other nationalities by air, due to high costs and poor diplomatic relations.

Even for nationalities that DHS finds easier to remove, the “get-tough” policies of the past 10 years have never done more than push numbers down for a few months before migration recovers again.

Just in the past 15 months, migration declined after the Biden administration expanded  Title 42 expulsions to new nationalities, after it replaced Title 42 with an asylum “transit ban,” and after it announced new deportation flights to Venezuela.

Each time, numbers at the border dropped after the policies’ launch, as migrants went into a sort of “wait and see” mode. Each time, they recovered. This is very likely to happen again if this bill becomes law.

4. Republican hard-liners are opposing this agreement, saying it doesn’t go far enough to restrict migration. What do they want?

Even before its language was known, Donald Trump called the Senate deal a “horrible open borders betrayal of America” and said he’d be happy to take the blame if it fails. House Speaker Mike Johnson (R-Louisiana) called the Senate’s bill “dead on arrival” in his chamber.

If Republicans kill the bill by pushing for something more extreme, the Biden administration will be left with no new tools to manage large-scale arrivals at the border: neither useful tools like the processing and adjudication capacity foreseen in its stalled budget request, nor cruel and ineffective tools like the Senate deal’s expulsion authority. Republican intransigence, then, looks like a barefaced attempt to sow chaos by hamstringing the administration at the border during an election year, as the Wall Street Journal’s very conservative editorial board pointed out on January 25.

5. What would a better policy look like?

U.S. administrations have attempted deterrence at the border for more than 30 years. This bill continues the tradition, even though the numbers make plain that deterrence has failed.

What has not been tried is robustly investing in more efficient, rights-respecting management of protection-seeking migration. Appropriations continue to favor deterrence while starving what is needed to have a fairer and faster-moving asylum system.

As past WOLA analyses have often laid out, the United States would be in a far better position to manage today’s global and hemispheric crises of migration if it devoted more resources to:

  • Processing: the ability to take someone into custody and perform checks (criminal background, family relationships, health status), enter identification data, and begin asylum procedures.
  • Adjudication: giving the U.S. immigration court system sufficient resources and personnel to try cases as quickly as due process allows. Right now, that is badly lacking: a workforce of 659 judges is creaking under a backlog of more than 3 million cases (of which asylum cases are a fraction). As a result, asylum seekers are in the United States for years waiting for their cases to be decided.
  • Alternatives to detention: releasing asylum seekers into the U.S. interior in a way that allows them to participate in the labor force, in order to support themselves economically while awaiting their court appearances. Well-designed alternatives to detention programs ensure that virtually all participants remain in the system and are aware of available services, while striking a healthy balance with the right to privacy.