Portside

The Senate, House, and White House are embroiled in down-to-the-wire negotiations to trade harmful changes to the asylum system and draconian immigration enforcement measures in exchange for approving a one-time defense supplemental funding package. We urge members of Congress and the White House to reject any such deal. 

If Congress passes the one-time defense supplemental, the money will likely run out in just a few months. But the major anti-immigrant policy changes that Congress and the White House are reportedly considering will be permanent. These policies include an updated version of Trump’s Title 42 policy, mandatory detention of migrants and asylum seekers while they adjudicate their claims (likely including children), increased power to deport people encountered beyond the border areas of the United States with little to no due process (known as “expedited removal”), and changing the legal standard for asylum to make it more difficult to prove an initial claim.

If passed, the measures under consideration would go even further than some of the Trump administration’s harsh and brutal actions—and because they will carry statutory weight, it’s unlikely that immigrant rights advocates will have a path to challenge them in court. Further, it should be apparent to any reasonable legislator or administration official that these policy changes will not improve the situation at the southern border and will have harmful impacts on migrant and U.S. workers alike.

For example, Senate negotiators are considering a similar version of the Trump administration’s Title 42 policy—which allowed border officials to quickly expel migrants without processing their asylum claims. While Title 42 was technically a public health measure invoked ostensibly because of the pandemic, it was widely decried as inhumane and unlawful by immigrant rights advocates and most Democrats, including Joe Biden when he campaigned for the presidency. But President Biden has now reportedly signaled a willingness to accept a new iteration of Title 42 as part of a deal.

A new Title 42-like policy, however, will have numerous disastrous impacts. For one, it will incentivize family separation because parents will send their children to the border unaccompanied, in order to increase the chance that their asylum claims will be heard. This will further increase the risk of migrant children being subject to labor exploitation, debt bondage, and even human trafficking.

In addition, when access to asylum is restricted, we know that more people fleeing persecution will try to enter the United States without authorization instead of turning themselves in to border officials in an orderly manner, as asylum-seekers have exercised their legal right to do before and after Title 42 was in place. This will increase the number of encounters by Border Patrol officers, not decrease them. The policy also hinges on acquiescence and cooperation by the Mexican government, which is by no means assured.

If these concessions are made, some people who still manage to enter the country outside of the legal process will not have access to work authorization, making them part of the permanently exploitable underclass of undocumented workers who lack real access to any labor standards protections because they fear deportation. This risks pushing down wages and working conditions for both immigrant and U.S.-born workers across the country, particularly those in low-wage jobs. Others will be detained and subjected to harsher, more inhumane conditions—whether in detention or after being deported quickly and without due process to the dangerous conditions they were fleeing in their countries of origin.

The main challenge at the southern border is a failed allocation of resources and the wrong priorities: Congress has appropriated eight times more funds for immigration enforcement than for adjudications in immigration courts and for asylum and refugee operations. The Department of Homeland Security’s request for additional funds for border security rightfully includes an increase in resources for immigration judges and processing asylum claims, but in our view, the concessions to worsen asylum, enforcement, and detention policies would cause the security situation to deteriorate and quickly render that increase moot.

Humanitarian crises, political instability, wars, and other disasters led to the highest number of forcibly displaced persons on record as of the end of 2022. The United States, the richest country in the world, can and should do its part to address the displacement crisis through a welcoming and generous policy for receiving and integrating humanitarian migrants into society and the workforce. We should not double down on a return to policies that we know only cause more suffering.

It is unacceptable to sacrifice the basic human rights of vulnerable migrants in exchange for a one-time, limited pot of defense aid that many in Congress already support on the merits. It’s particularly notable that the major changes being considered have never been on the table as part of a package that could realistically become law, not even as part of a negotiation to try to finally force movement on the most important immigration reform that’s needed; namely, a path to citizenship for 11 million unauthorized immigrants. 

Despite the complexity and magnitude of the changes being considered, we are deeply troubled that the deal is reportedly being negotiated without many of the members of Congress who have the deepest knowledge of immigration law, including members of the Congressional Hispanic Caucus, and even without Sen. Dick Durbin (D-Ill.), the Chair of the Senate Judiciary Committee, which has jurisdiction over immigration. Sen. Chris Murphy (D-Conn.), one of the chief negotiators for Senate Democrats, is a relative newcomer to the topic of immigration, and recently admitted that drafting legislative language for the deal is “more fraught and more complicated” than for other topics, which will undoubtedly lead to unintended—and possibly disastrous—consequences.

If conservative legislators are allowed to demand draconian immigration reforms for military funding that a majority of them already support independently, they will be enabled and incentivized to ask for even more concessions every time Democratic legislators come to the bargaining table. It would mark yet another example of the far-right fringe in Congress hijacking the political process to force through their deeply unpopular, harmful policy aims in funding deals and must-pass vehicles on unrelated topics.

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