January 29, 2024

This appears to be the week in which Senate negotiators will issue compromise legislation that provides new funding for Ukraine, Israel, the border, and other priorities—while meeting Republican demands that it change U.S. law to restrict asylum at the U.S.-Mexico border.

“We do have a bipartisan deal. We’re finishing the text right now,” lead Democratic negotiator Sen. Chris Murphy (D-Connecticut) told CNN. “We are sort of finalizing the last pieces of text right now. This bill could be ready to be on the floor of the United States Senate next week.”

Media accounts say that the negotiators have agreed to:

  • Automatic Title 42-style expulsions of would-be asylum seekers, a “shutdown of the border,” when a day’s migrant apprehensions between ports of entry exceed a seven-day average of 5,000 or 8,500 on a single day, as often happens; there would be discretionary authority to suspend asylum when the average hits 4,000. Once that threshold is crossed, “migrants would be expelled indefinitely until crossings dipped below 3,750 per day, which would end the expulsion authority period,” the Washington Post explained.

    As with Title 42, exceptions would only be for people who can prove fear of torture if returned, under the Convention Against Torture. There is no word on whether Mexico would agree to accept expelled individuals.
  • A higher “credible fear” standard that asylum seekers would have to meet in screening interviews with asylum officers, if they are among the segment of migrants placed in expedited removal proceedings (roughly 25,000 per month in recent months, but likely to increase).
  • Those who pass these screenings would have greater access to work permits inside the United States.
  • Unspecified changes to the asylum process “with the goal of reducing the average time for an asylum claim to be resolved from several years to 6 months,” according to the Washington Post—a goal that would require either drastic curbs on due process or significant new investment in the asylum system.
  • According to CBS News, the deal includes Democratic priorities like “50,000 new family and employment-based immigrant visas, offer[ing] permanent residency to tens of thousands of Afghans brought to the U.S. following the fall of Kabul in 2021, and provid[ing] immigration status to the children of H-1B visa holders.”

The agreement does not appear to include Republican demands for limits on the presidential authority to grant humanitarian parole to migrants at the border. The agreement would not touch the CBP One program allowing 1,450 asylum seekers per day to make appointments at ports of entry.

In a White House statement and in remarks given in South Carolina, President Joe Biden voiced enthusiasm for the Senate deal. Of the Title 42-style expulsion authority, he said “If that bill were the law today, I’d shut down the border right now and fix it quickly.”

“There’s just one thing” about the Senate’s legislative deal, wrote Stef Kight at Axios: “Their plan is all but dead.” The House of Representatives’ Republican majority, prodded by Donald Trump, is lining up to oppose the deal because they claim it doesn’t go far enough to restrict migration. Trump called it a “horrible open borders betrayal of America” and said he’d be happy to take the blame if it fails.

Even before the language is public, House Speaker Mike Johnson (R-Louisiana) has called the Senate’s bill “dead on arrival” in his chamber. “According to reports, the Senate’s pending proposal would expressly allow as many as 150,000 illegal crossings each month (1.8 million per year) before any new ‘shutdown’ authority could be used. At that point, America will have already been surrendered,” Johnson said.

Oklahoma’s Republican party voted Saturday to censure the Senate Republicans’ chief negotiator, James Lankford (R-Oklahoma).

U.S. Customs and Border Protection (CBP) updated its dataset of migration at the U.S.-Mexico border through December, showing a record 302,034 migrant encounters border-wide in December. 52,249 encounters took place at ports of entry, and 249,785 people ended up in Border Patrol custody after crossing between ports of entry. The top nationalities were Mexico (23%), Venezuela (19%), Guatemala (12%), Honduras (7%) and Colombia (6%). WOLA’s Adam Isacson posted nine charts illustrating the data.

During January, migrant arrivals have dropped to about half of December’s rate.

The House Homeland Security Committee’s Republican majority is moving ahead with the impeachment of DHS Secretary Alejandro Mayorkas on two counts, the second-ever impeachment of a Cabinet official and the first since 1876. House Republicans accuse Mayorkas of willfully refusing to secure the border and control migration.

The Committee is to meet on Tuesday to launch impeachment proceedings; while they certainly lack the votes to remove Mayorkas in the Democratic-majority Senate, it is not even clear whether they have the necessary bare majority in the House.

A Wall Street Journal column by Michael Chertoff, George W. Bush’s second Homeland Security secretary, urged House Republicans not to pursue impeachment.

About 8,000 people migrating through Mexico each month pay smugglers up to $40,000 for an “amparo package” that promises that they can cross the country, and reach the U.S. border, with “free transit” and no concern about deportation—a guarantee that relies on a green light from corrupt migration officials.

A right-wing “Take Our Border Back” truck convoy plans to gather in Eagle Pass, Texas, on February 3.

Analyses and Feature Stories

The New Yorker published an excerpt from an upcoming book about migration from reporter Jonathan Blitzer, telling the story of a Honduran woman whom the Trump administration separated from her sons in 2017, when agents in Border Patrol’s El Paso Sector were carrying out family separations on a trial basis.

University of Texas law professor Steve Vladeck explained to CNN that Texas Gov. Greg Abbott (R) is not defying the Supreme Court’s January 22 decision requiring him to allow Border Patrol agents to cut through concertina wire that state officials have laid along the Rio Grande. However, Abbott “is interfering with federal authority to a degree we haven’t seen from state officials since the desegregation cases of the 1950s and 1960s.”

Texas is seeking to have today’s more conservative Supreme Court undo earlier rulings giving the federal government control over immigration policy, wrote Ian Millhiser at Vox.

Amid the state-federal dispute in Texas, “Republicans and conservative media have alluded to the prospect of the situation forcing soldiers to choose between loyalty to their state and loyalty to their country—even proposing that matters could turn confrontational and violent. Some have invoked another civil war,” noted Aaron Blake at the Washington Post.

The ACLU voiced concern that the Biden administration’s request for additional border spending would expand ICE’s Family Expedited Removal Management (FERM) program, a high-tech alternative-to-detention program applied to asylum-seeking families placed in a fast track adjudication process. FERM “normalizes 24-hour suspicionless surveillance,” the organization contended.

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