In exchange for approving more aid to Ukraine, congressional Republicans want Democrats to agree to dramatically limit the options migrants have to claim asylum from the United States and to ramp up detention and deportation of migrants.
President Biden is seriously considering it.
For the past several weeks, congressional negotiators have been trying to come to an agreement linking these issues, along with aid to Israel. Biden said last week he was “willing to make significant compromises” to “fix the broken border system.”
But when it comes to immigration, those compromises would be mainly coming from one side. The longtime reason for congressional gridlock on immigration is that Democrats traditionally insist tougher border measures be paired with an agreement to legalize the status for unauthorized immigrants already living here. Democrats now know they can’t get that from today’s GOP, but they may agree to restrictionist measures anyway.
Why the change?
In part, it’s to get the Ukraine aid, a top priority for Biden and the foreign policy establishment. ”The fate of the world — the fate of Ukraine and Israel — hangs in the balance,” said Sen. Chris Murphy (D-CT), urging a deal. (Politico’s Ryan Lizza characterized this as immigration reformers’ longtime priorities being “traded away and replaced with Biden’s foreign aid priorities.”)
But it’s also because more and more Democrats have grown uncomfortable with the border and asylum situation in the Biden years, which have featured a dramatic surge in border crossings and asylum requests.
Conservatives have long argued that far too many people are coming in far too chaotically, and some Democrats — blue-city mayors, blue-state governors, and swing staters eyeing reelection — have started to agree. They view it as both a substantive mess and a political liability, and they are weary of holding out for a legalization deal that seems vanishingly unlikely to happen anytime soon.
When Donald Trump was in office, Democrats embraced openness to immigration as a core defining issue to differentiate themselves from the president’s intolerance and cruelty. Cutting an immigration restriction deal would be a major shift for the “in this house, we believe no human is illegal” party. It would sink the hopes of many of the millions of people coming to the US to seek a better life for themselves and their families, often braving a treacherous journey. And it would cause immense controversy among progressives and activists on the left.
And though Biden is currently struggling to cut a deal with Senate Republicans, he’ll also have to win the assent of the GOP House, which has even more extreme demands. The president has some tough choices ahead, and he’s out of good options. But the signals currently suggest he wants to make many concessions — accepting Trumpian immigration restrictions Democrats have long condemned.
The border and asylum under Biden
Republicans have been talking about a crisis at the border for years, but the numbers since Biden took office have reached a new level. For most of the decade before Biden took office, US Customs and Border Protection had four or five hundred thousand “encounters” with migrants at the southern border each year. Under Biden, the average number has been about 2 million a year, with this year being the highest yet.
Many of these arriving migrants end up claiming asylum. Asylum is for migrants already in the US or at a port of entry who have a “well-founded fear of persecution” in their home country based on one of five grounds: race, religion, nationality, political opinion, or “membership in a particular social group.” There is no cap on how many people can be granted asylum — if someone is found to qualify on one of those grounds, then under the law, they should get it. But note that economic reasons like poverty are not on the list.
You might think the prototypical migrant tries to slip into the country and avoid detection, but many asylum claimants do not do that. Instead, they present themselves to authorities at the border, saying they want asylum. Importantly, once they do this, they are often released into the US while they wait for their cases to be processed and adjudicated — something that can take years. (This is an “affirmative asylum” request. Asylum claims can also be raised “defensively,” to avert a pending deportation.)
When the Obama administration began, the number of new affirmative asylum claimants was well below 100,000 a year, but toward the end of his time in office, that changed. The rise continued at the start of Trump’s term, and he adopted sweeping policies meant to discourage asylum seekers, policies Democrats roundly condemned. Under Biden, affirmative asylum claims surged again to a record 239,000 in the fiscal year 2022. And because so many new claims keep coming in, the backlog of unresolved cases keeps rising too.
The new migrants are coming from a variety of places — most notably Venezuela, but also elsewhere in Central and South America and even China. Many make a long and arduous land journey, passing through several countries after paying an increasingly sophisticated people-smuggling operation linked to cartels.
There are two competing narratives on why this massive surge has happened. Progressives often prefer to emphasize what are known as the “push” factors — the conditions that drive migrants to leave their home countries, like the catastrophic collapse of Venezuela’s economy and degradation of conditions in Nicaragua and Haiti. Crises like these, they argue, have simply gotten worse in recent years, both in the region and around the world.
In contrast, conservatives emphasize the “pull” factors, arguing that there are specific features of US and Biden administration policy and messaging that are driving the surge. People are mainly coming, they say, because they’ve heard that, with the way our system is set up, they have a pretty good shot at getting in.
The dramatic surge in claims has led to questions about how many of these migrants are truly fleeing political persecution. Many are likely migrating for (sympathetic and understandable) economic reasons — simply to make a better life for themselves and their families. And they may be using less-solid asylum claims as, basically, a means to an end — thinking that, after claiming asylum, there’s a good chance of being released into the US and eventually working (legally or not).
Yet in the political debate, the question of how many asylum claims are “legitimate” often seems beside the point. One side generally believes that we should help people, whatever their reasons for coming. The other side generally believes that there are simply too many people coming in, regardless of their reasons.
How Biden and Democrats have tried to respond to the migrant surge
Since taking office, the Biden administration has been torn between progressives’ impulse to help more immigrants and moderates’ fear that too many arrivals poses practical and political problems.
The progressives argue that, for humanitarian and moral reasons, the goal of policy should be to help people who need help: in this case, the migrants, who typically come with nothing and risk everything for a shot at a better life. Policies aimed at deterring migrants, progressives believe, are cruel and unlikely to succeed, since they clearly have very powerful reasons for coming. And why should it matter if people are coming for fear of persecution or economic desperation? We should help them in either situation.
Initially, Biden adopted some of progressives’ preferred policies, but he soon had second thoughts. Early on, top White House officials reportedly concluded that the constant headlines and footage about record numbers of unauthorized border-crossers were a political risk — so they’ve been trying to get those numbers down. “The border is not open,” DHS Secretary Alejandro Mayorkas has repeatedly said, trying to dissuade more people from coming.
The pressure rose in 2022 and 2023, when Democratic politicians in blue states and cities seeing an influx of migrants increasingly complained that they were overwhelmed — with their shelter systems, schools, and budgets being seriously strained with the challenge of helping so many needy people. Essentially, this meant conceding that a longtime Republican argument — that it’s actually disruptive, difficult, and expensive to deal with a huge inflow of migrants to your area — was correct. New York City Mayor Eric Adams led the backlash, and others joined too.
“When it was just Republicans complaining, they could ignore them. They could say they were just being partisan, or racist,” a former Biden administration official told the New Yorker earlier this year. “When the Democrats started complaining, they had to listen.”
So this year, Biden embraced a two-sided policy. On one hand, he announced that asylum seekers would be presumed ineligible unless they’d made an appointment through an app or been denied asylum in a country they’d passed through. This was said to be bringing more order to the process, but the changes faced much criticism over technical problems and access difficulties for asylum seekers lacking cellular or internet service. There were also far too few app appointments to meet demand — so in practice, this shared similarities with Trump’s much-criticized policy aimed at keeping asylum seekers in unsafe conditions in Mexico.
But Biden also wanted to give people more legal pathways to get in. So he let in tens of thousands of appointees through that app each month. He’s increasingly used an authority known as “parole” to let hundreds of thousands of immigrants from Venezuela, Haiti, Nicaragua, and Cuba stay for two years if they have a private sponsor. And he’s offered “temporary protected status” and work permits to many more immigrants, including nearly 500,000 from Venezuela (though the White House reportedly feared doing this would attract yet more migrants, they conceded to the demands of Democrats like Adams, who argued many who have already made it in needed permission to work and support themselves).
“All told, these temporary humanitarian programs could become the largest expansion of legal immigration in decades,” the New York Times’s Miriam Jordan wrote.
Yet after an initial lull when Biden’s new policies were rolled out earlier this year, unauthorized border crossings returned to record levels again in recent months. And many Democrats in “receiving communities” say still more needs to be done to reduce those numbers. “We want them to have a limit on who can come across the border. It is too open right now,” New York Gov. Kathy Hochul (D) said in October, calling it “a real problem for New York City.”
“It’s in our DNA to welcome immigrants,” Hochul continued. “But there has to be some limits in place.”
Why a deal may be coming into view — and why progressives are so suspicious of it
This Democratic shift is why, when Republicans chose to make border and asylum changes their demand in talks over Ukraine aid, they weren’t laughed out of the room.
Biden had already insisted that aid to Israel, which has broad bipartisan support, be linked to aid to Ukraine, which is controversial among Republicans (but strongly supported by Senate Minority Leader Mitch McConnell and the country’s bipartisan foreign policy establishment). In Biden’s aid request, he also asked for $14 billion to fund more border agents and officials to process asylum cases.
So when Republicans insisted all this money needed to be paired with immigration policy changes, many Democrats were willing to negotiate — some because they believed border and asylum reforms were politically or substantively necessary, and some because they viewed it as a reasonable price to pay for their highest priority of Ukraine aid.
“I think that 50 years from now, no one is going to remember whether we changed asylum policy,” Sen. Brian Schatz (D-HI) said last week, per the Messenger’s Lindsey McPherson and Nolan McCaskill. “They will remember whether we let Putin take another country by force in a ground war in Europe.”
Yet these shifting politics have also emboldened Republicans to make even steeper demands. Democrats’ attempts to talk about legalizing the status of the DREAMers, unauthorized immigrants who came here as children, were flatly rejected by the GOP. Instead, they want Democrats to embrace Trumpian “crackdown” measures — turning more people away more quickly.
Reportedly, Democratic negotiators are ready to toughen the standard it would take for a migrant to establish that they have a “credible fear” of persecution in their initial screening (and therefore get permission to stay while their claims are being adjudicated), but that would make only a small impact on the overall numbers, since only a small share of people at the border currently get such screenings.
But Republicans argue that too many people have figured out they can questionably claim asylum in the US and then get released here while their claims are pending. The only way to get these numbers down, they say, is to change that perception — with more detention of people whose claims are pending, and quicker resolutions and deportations for those found ineligible. For instance, more apprehended Venezuelan migrants should be sent back to Venezuela, they say (and the Biden administration agrees, having cut a recent deal with the country to do just that).
The GOP also wants to give the president new broad powers to effectively suspend asylum law and turn asylum seekers away — similar to Trump’s use of “Title 42” authority, but without requiring the justification of a public health emergency. They want to expand “expedited removal,” a quicker expulsion process without asylum screenings already in place at the border, to the whole country. Biden is open to both, CBS News’s Camilo Montoya-Galvez reported this week.
Another thorny ask the GOP is making has to do with parole, the power Biden has used to try and create “legal pathways” to meet the massive demand for immigration. Republicans have been furious about what they say is Biden’s massive expansion of that authority to let hundreds of thousands of people get permission to stay in the country temporarily. The administration argues that this is a more orderly and legal process than the chaotic alternative. But Republicans say that power needs to be reined in somehow — something Democrats have so far resisted in negotiations.
Progressives say that this all amounts to trying to deter asylum seekers by making asylum more difficult and dangerous to get. They argue that this won’t work and people will still come, due to the situations in their home countries. But, more to the point, they argue that it would be immoral — and that, depending on the details in a final agreement, these changes could amount to a dismantling of the existing asylum system.
In a late November statement, Sen. Alex Padilla (D-CA) and 10 other progressive senators said they were “concerned about reports of harmful changes to our asylum system that will potentially deny lifesaving humanitarian protection for vulnerable people, including children, and fail to deliver any meaningful improvement to the situation at the border.”
But Biden and many other Democrats appear to have concluded that the current situation is politically and practically untenable. We don’t yet know whether they will reach a final deal with Senate Republicans — and whether the GOP House would pass such a deal. Yet the writing seems to be on the wall for major White House concessions — and for a significant shift to the right from Democrats on immigration that could affect a great many lives and define the party for years to come.