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As the end of Title 42 nears, Congress is no closer on immigration overhaul

Proposed GOP immigration legislation is too harsh, even for some Republicans.

House Speaker Kevin McCarthy speaks into several microphones while standing in front of a warehouse-like building
House Speaker Kevin McCarthy speaks during a press conference at the US-Mexico border in Cochise County, Arizona, on February 16, 2023.
Rebecca Noble/AFP via Getty Images
Ellen Ioanes covers breaking and general assignment news as the weekend reporter at Vox. She previously worked at Business Insider covering the military and global conflicts.

House Republicans put forth an immigration package Monday which proposes some of the harshest restrictions on migration through the southern border, virtually ending the right to asylum for anyone not crossing through legal ports of entry. Though Sen. Bob Menendez (D-NJ) has provided a set of recommendations on immigration, as yet there’s no competing legislation to help manage an expected influx of migrants through the southern border this spring and summer.

The GOP’s extreme border package — which includes an effort to impeach Homeland Security Secretary Alejandro Mayorkas — is unlikely to gain enough votes to pass with the Republicans’ slim majority, but time is running out to pass comprehensive immigration legislation before the Covid-era Title 42 order is set to expire May 11. That order allows the government to deport migrants for public health reasons, without giving them the opportunity to apply for asylum.

The end of Title 42 likely portends a fresh wave of migrants coming to the US border to apply for asylum protections — an event for which the system has long been ill-equipped. But instead of providing resources to speed up asylum hearings, for example, perhaps the most alarming aspect of the Republicans’ legislation is that it targets the ability to even seek asylum, which is affirmed under the Universal Declaration of Human Rights. The US, as a signatory to the declaration, has an obligation to uphold its principles, but the UDHR is not a legally binding document.

Previous legislation, introduced by Rep. Chip Roy (R-TX), set out similarly harsh policies; his bill would allow the DHS head to stop all border crossings of undocumented people through any point of entry so DHS could maintain “operational control” of the border. That legislation, first introduced in January, proved shocking even to some within Roy’s party, including Rep. Tony Gonzalez of Texas.

“Trying to ban legitimate asylum claims — one, it’s not Christian, and two, to me, it’s very anti-American,” Gonzalez said. “So a lot is at stake.” Vox reached out to Gonzalez’s office for a comment on Wednesday’s legislation but did not receive a response by press time.

The latest package is divisive among House Republicans, too, for its attempt to impeach Mayorkas — something House Speaker Kevin McCarthy threatened to do as part of his turbulent leadership campaign. But in a sharply divided majority, some Republicans see the impeachment efforts as misplaced: “This is really Joe Biden’s policies, more than Mayorkas, and are we going to impeach the president on this? No,” Rep. Don Bacon (R-NE) told the New York Times.

Some Republicans also object to changes to a program called E-Verify, which businesses use to cross-check employees’ documentation against DHS and Social Security records. Requiring businesses to use E-Verify could dramatically affect the functioning of the agricultural industry, which relies on undocumented migrant labor.

The end of Title 42 means more people seeking asylum

With the likely end of the Title 42 policy fast approaching, there will be a probable corresponding uptick in asylum seekers, too, as the government won’t be able to use the public health order to remove them. As of December 2022, Title 42 had been used an estimated 2.5 million times to expel migrants since it was put in place in March 2020, the Associated Press reported at the time.

But, as both Democrats and Republicans have said, the immigration system is unprepared to manage the thousands of people who will attempt a border crossing after Title 42 ends. As Vox reported in December,

The fact remains that the immigration system is overstretched and inefficient; the average wait time for immigration cases has skyrocketed from around a year in 1998 to around two and a half years in 2021, according to Syracuse University’s TRAC Immigration system. Migrants are held in substandard, unsafe conditions under the Remain in Mexico program, and both nonprofit and government resources designed to assist them after they reach the US are already overwhelmed.

US immigration policy has not seen significant changes since the Immigration Act of 1990, and the pre-Title 42 asylum system had not been altered since 1980. The Obama administration introduced the Deferred Action for Childhood Arrivals, or DACA program, to protect undocumented people brought to the US as children, but otherwise, there’s been almost no movement to reform the immigration system since 1990. There has been an overall increase in people attempting to enter the US via the southern border — which the right has turned into a culture war bogeyman, best exemplified by former President Donald Trump’s attempt to build a border wall.

Under the proposed GOP legislation, migrants would be barred from applying for asylum in the US for a broad swathe of reasons, as Aaron Reichlin-Melnick, policy director at the American Immigration Council, wrote in an April 19 blog post.

Almost all migrants who lived in the US undocumented for more than a year or did not apply for asylum in a third transit country would be barred from the asylum process, as would many people fleeing persecution in their home countries, Reichlin-Melnick wrote. That’s because the bill significantly narrows the definition of who can apply for asylum based on political opinion, and would cut off paths to asylum for those fleeing threats from non-state actors, guerrilla or terrorist groups, or gangs.

“Taken together, these provisions would eliminate the U.S. asylum system as it has existed since the Refugee Act of 1980,” he wrote. “Only those who have the money to buy a direct flight to the United States would have any real chance of access [to] the asylum system—and even then, most would be unable to win given the proposed narrowing of asylum law.”

What are the alternatives?

Menendez, the Democratic head of the Senate Foreign Relations Committee, set out his own plan for managing the influx of migrants on Tuesday, relying primarily on executive orders, rather than congressional action.

“Successive U.S. administrations have designed their domestic and foreign policies to respond to shifting needs at the border, an approach that has not created a sustainable long-term solution to a mixed flow of migrants and refugees,” Menendez told CNN This Morning on Wednesday. “If we continue down the road where we’ve been, which is reactive and responsive and an enforcement-only mechanism, we’re going to continue to have the same problem.”

Menendez’s plan suggests Biden issue executive orders which would increase resources to process asylum seekers at the border — as well as provide for expedited removal for those who don’t qualify. Menendez’s plan also calls for increased access to free legal aid and for people to await asylum hearings in humane conditions, or “non-detention settings.”

The plan also calls for increased cooperation with Latin American nations to reduce the conditions, like economic necessity and violence, that cause migration, as well as help Latin American and Caribbean nations manage migration more safely. To that end, the US, Colombia, and Panama have also agreed to work on limiting migration and smuggling through the perilous Darien Gap, which has recently become a popular route for people attempting to enter the US.

Menendez’s tactic of going around Congress and advising the White House to issue these orders does, at this point, seem to be the only likely way to make any changes on immigration for the time being. But unless and until there’s any effort from Congress to address the US’s immigration system as well as the causal factors that drive it, these programs are always in danger of elimination by the next administration. With just a year and a half till the 2024 elections, the programs Menendez suggests could be eliminated before they can prove their effectiveness.

In the meantime, the GOP is continuing to move forward with its extremist immigration policies — without a guaranteed winning strategy, but also without a clear legislative alternative that can manage the arrival of thousands of asylum-seekers and migrants over the next several months.

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