Republicans have to decide if they’re serious about border security

Immigration and border security are perennial issues in American elections; both parties have raised money and campaigned on them, without subsequently following through by passing substantive legislation. The last major immigration reform bill passed when Ronald Reagan was president.

It has seemed at times that our political parties have decided that immigration and border security are issues best left unsolved — so they can continue campaigning and raising money on them. But there are real problems affecting real people that deserve real solutions.

With Republicans taking the majority in the House, the ball is now in their proverbial court.

Rep. Chip Roy’s (R-Texas) “Border Safety and Security Act of 2023,” H.R. 29, which currently has 64 cosponsors, was supposed to go directly to the floor for a vote instead of having to move through the regular legislative process. But concerns about the bill from within the Republican Party prevented this from happening.

Roy’s objective is to end the Biden administration’s “catch and release” border policy. A report from the DHS Inspector General indicates that the administration has released most of the illegal crossers it has apprehended who are not expelled under Title 42. That amounts to nearly 1.35 million undocumented migrants released into the country — plus there have been 1.2 million gotaways. Gotaways are illegal crossers who are detected but not apprehended.

Moreover, there has been an increase in the apprehensions of undocumented crossers at the northern border. The Border Patrol has apprehended more illegal crossers on the northern border in 2023 than in all of last year — and it’s only February.

H.R. 29 could end “catch and release,” but its provisions are so extreme that even Republicans are objecting to it. 

Are its 65 Republican sponsors just playing to their base with no expectation of seeing it enacted into law? Perhaps. But it will now go through the regular legislative process, during which it can be reviewed and amended — and I think it’s possible to make it acceptable enough to pass in the House and perhaps the Senate.

It focuses on denying entry

Section 2(a) of the proposal would give the DHS Secretary discretion to prohibit the entry of migrants without proper entry documents at land and maritime borders when it is necessary to achieve “operational control” over those borders. Former immigration judge and former acting chief of the INS National Security Law Division Andrew R. Arthur has observed that this authority is quite similar to the authority Trump used to issue his travel ban order, which was upheld by the Supreme Court. This indicates that the secretary’s decisions on prohibiting entries could be very difficult to challenge in court.

Section 2(b) would require the secretary to prohibit the entry of migrants without proper entry documents for any period during which he cannot detain them in expedited removal proceedings or place them in a program consistent with section 1225(b)(2)(C) of the INA.

And section 2(c) would permit state attorneys general to seek a court order requiring compliance with the other provisions.

Making it viable

Rep. Tony Gonzales (R-Texas) is afraid that H.R. 29’s current wording would effectively ban asylum claims outright.

Fortunately, Biden provided a solution to this problem in his own immigration reform bill, the U.S. Citizenship Act of 2021, section 2201 of which would establish Designated Processing Centers throughout Central America for processing refugee applications from migrants fleeing persecution. Migrants who establish eligibility for refugee status could be resettled in the United States or some other country. 

H.R. 29 could establish such centers for asylum seekers who are prohibited from entering the United States. To make this work, the president would have to increase the annual refugee resettlement ceiling, which he set when numbers weren’t needed for this purpose.

Also, H.R. 29 does not bar the entry of asylum seekers, who can be detained while they go through expedited removal proceedings — and if they establish a credible fear of persecution in those proceedings, they are entitled to an asylum hearing before an immigration judge.

Another way to make the bill more palatable — and more likely to pass with some Democratic support (a requirement in the Senate) — would be to add a DREAM Act component.

An overwhelming majority of voters across the political spectrum support legislation for the DREAMers. Adding a DREAM Act component would show that the Republicans are willing to support legalization programs they consider reasonable when they are paired with effective border security measures.

The DREAM Acts the Democrats have introduced, such as the DREAM Act of 2021, have been unacceptable to the Republicans. According to the Migration Policy Institute, it would have made lawful status available to approximately 2.7 million undocumented immigrants, not counting the family members they likely would bring into the country when they acquire permanent resident status or citizenship. It also included provisions which would have made lawful status available to 393,000 Temporary Protected Status or Deferred Enforced Departure participants, and 190,000 “Legal Dreamers.”

House Majority Leader Steve Scalise (R-La.) is opposed to giving amnesty to undocumented immigrants because he does not want to reward them for violating our laws. Scalise is by no means alone on that point. But that objection doesn’t apply to the DREAMers. They didn’t intentionally violate our laws by coming here illegally; they were brought here by their parents when they were young children.

While previous Democratic proposals would not have prevented DREAMers who become citizens from conferring permanent resident status on their parents, Republicans could write a proposal that does. They could base legalization on a modified Special Immigrant Juvenile (SIJ) program. Migrants who obtain permanent resident status through that program cannot confer an immigration benefit on their natural or prior adoptive parents, even after naturalization. 

There are many ways to make H.R. 29 more acceptable; these are just suggestions.

The reality is both sides must compromise on some points if they want to address the very real problems we’re facing.

That includes Republicans, who have to decide whether they really want border security — or just want to kick the can into the next campaign fundraising season.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at: https://nolanhillop-eds.blogspot.com