Breaking down the Senate border bill — and why it has no chance of passing 

BorderWall 061021 AP EugeneGarcia

In a statement supporting the Senate Border Act of 2024 (Border Act), President Joe Biden says it would give him authority to shut down the border when it is overwhelmed and give him the funding needed for an additional 1,300 border patrol agents, 375 immigration judges and 1,600 asylum officers. 

He claims that the “House Republicans have to decide. Do they want to solve the problem? Or do they want to keep playing politics with the border?” 

No. It’s the Democrats who are playing politics with the border.  

The Border Act would not secure the border. Among other weaknesses, it fails to provide a solution to the most serious problem, which is that Biden has released so many asylum seekers into the country that our asylum system has broken.   

One of its other weaknesses is the provision that gives authority to shut down the border, which wouldn’t kick in until the seven-day average number of cumulative encounters with inadmissible migrants is between 4,000 and 5,000 per day. And it would be discretionary unless the seven-day average is above 5,000 per day.  

In other words, the administration would have the discretion to catch and release up to 5,000 inadmissible migrants per day — almost 2 million per year. 

House Speaker Mike Johnson says that if Border Act reaches the House, it will be “dead on arrival.” It even is facing opposition from Senate Democrats, including Alex Padilla of California, who says the bill “misses the mark” and amounts to “dismantling” the asylum system. 

This isn’t the first time Senate Democrats have enlisted the assistance of a few Senate Republicans to produce a so-called “bipartisan bill” that isn’t likely to get much Republican support and will be “dead on arrival” if it reaches the House.  

On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611, with a vote of 62 yeas and 36 nays. Although it was bipartisan, it was opposed by 58 percent of Senate Republicans, and the Republicans held the majority in the House.  

On June 27, 2013, the Senate passed Sen. Charles Schumer’s (D-N.Y.) Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. It was opposed by 70 percent of Senate Republicans, and Republicans held the majority in the House. 

Neither bill went anywhere. 

Why are such bills introduced at all? According to Texas Sen. Ted Cruz, the purpose of the Border Act is merely to let Democrats running for office in the upcoming elections say, “I wanted to secure the border … but those mean Republicans wouldn’t let me.”  

The asylum system is broken 

The Border Bill would facilitate asylum processing at the border and make it more difficult to get an asylum hearing before an immigration judge. However, migrants would still be screened for eligibility for withholding of removal or protection under the Convention Against Torture.  

In addition, Customs and Border Protection would be required to process a minimum of 1,400 inadmissible migrants per day at land ports of entry under expedited removal or non-custodial removal proceedings. This would be more than 51,000 undocumented immigrants a year. 

At best, these measures would slow the rate at which the immigration court backlog grows.  

According to TRAC Immigration, the growth of the immigration court backlog has been accelerating at a breakneck pace since the start of the Biden administration, when the backlog was only 1,290,766 cases. It is 3,287,058 cases now.  

The average wait for an initial master calendar hearing for pleadings and to schedule an individual hearing on the merits of the case is four years. The total wait for a merits hearing can be up to 10 years .   

Adding more judges won’t help. While the addition of the 375 more judges Biden wants would increase the size of the court to more than a thousand, the Congressional Research Service estimated in a July 2023 report that it would take 1,349 judges 10 years to clear the backlog, which was only 1,979,313 cases when CRS made that calculation. The backlog is more than 55 percent larger now. 

The immigration court completed 671,966 cases in fiscal 2023. At that rate, it would take around five years for it to clear its 3,287,058 case backlog even if it did not receive any more new cases.

Frankly, I don’t think there is a feasible alternative to suspending consideration of new asylum applications when the backlog gets too long. 

In the meantime, the immigration court’s ability to adjudicate new asylum cases will be severely impaired. It will have to docket them at the end of a very long line or use a last-in, first-out policy that is very unfair to migrants who have been waiting a very long time for a hearing. The same alternative applies to apparently deportable migrants who are placed in removal proceedings. 

Offsetting hardships 

The hardship that suspending consideration of new asylum applications might cause could be minimized by increasing the cap on annual refugee admissions and making refugee camps available to the asylum seekers who appear at our border.  

Biden has set the cap for fiscal 2024 at 125,000, but presidents can increase the cap at any time on an emergency basis. 

Another possibility to make the bill more acceptable to Republicans would be to establish a legalization program that is based on America’s needs instead of on the needs of undocumented immigrants.  

According to the U.S. Chamber of Commerce, we have 9.5 million job openings in the U.S., but only 6.5 million unemployed workers. Many of these job openings could be filled by making temporary lawful status and employment-based visas available to undocumented immigrants who are already in the United States.  

But none of this is possible without genuine bipartisan cooperation. 

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: 

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