The election and immigration

Rick Morain

What effect will the 2024 election have on the immigration situation?

I’m writing this column on Sunday before the Tuesday election, so I don’t know its outcome. But the outlines of immigration policy possibilities are visible nevertheless.

This year’s experience with immigration proposals brought the nation to where it is now. For more than four months, starting in late 2023 and continuing into early 2024, a tripartisan trio of U.S. Senators hammered out a compromise that reportedly had the support of most Senators, Republicans and Democrats alike. The three were Senator James Lankford (R-Oklahoma), Senator Chris Murphy (D-New Jersey), and Senator Kyrsten Sinema (I-Arizona).

Any compromise, by definition, gives each participant some things they want and some things they don’t want. That is certainly true of the immigration proposal the trio developed. Announced in early February, its provisions responded to various concerns expressed by most members of Congress for the previous several months, even years.

The knottiest challenge was, and remains, to stiffen border security while still maintaining a humanitarian response to immigrants’ plight. The three Senate negotiators worked out the following plan, which would drastically change the existing asylum system:

—Move most new asylum cases from Department of Justice immigration judges to asylum officers with the U.S. Citizenship and Immigrations Services in the Department of Homeland Security (DHS) for faster review, often without attorneys or deliberation.

—Toughen the standard an asylum seeker must meet. The negotiators believe the change would cause denial of the vast majority of applications.

—Disqualify asylum seekers with criminal histories, or who were living safely in a third country before seeking asylum, or who could safely relocate within their home country.

—Screen migrants initially within 90 days of arrival. If their claims fail, they are ordered for removal immediately, with 72 hours to appeal or request a hearing. If they pass the initial screening, they would get a work authorization immediately, be released into the United States, and have another 90 days before they receive a final decision. (Today some such migrants await that decision for several years.)

—Migrants who arrive and are processed at authorized ports of entry could await processing inside the U.S. Those entering illegally and seeking asylum are more likely to be detained than under current law.

—Families would not be detained. They would be tracked through some method, chosen by the official processing the claim. Ankle bracelets would be an option.

—The proposal would create a new ”border emergency authority.” After a “trigger” level of migrant numbers is reached, illegal migrants would automatically be removed. Those triggers are 4,000 per day over seven days, giving DHS an option to use the trigger, or 5,000 per day over seven days, the point at which DHS must use the trigger. The trigger would turn off after two weeks if the numbers fall below those levels, couldn’t be used more than 270 days in the first year and with smaller numbers the net two years, and would sunset after three years.

—When the emergency authority begins, DHS could ban entry to anyone entering illegally (not through a port of entry), with no screening for credible fear asylum seekers before they are returned.

—Unaccompanied minors would be admitted.

—DHS could screen for those who claim they would be tortured if they return home, or who are challenging other removal orders they have already received.

—Process at least 1,400 migrants per day at the southwest border who enter outside the ports of entry.

—Allow more legal immigrants to enter, with 50,000 new job or family related visas a year for five years. The present number of immigrants admitted legally to the U.S. is pitifully small.

—Allow green cards and a pathway to citizenship for Afghans admitted after the U.S. withdrawal from Afghanistan in 2021.

The proposal would not provide a pathway to citizenship for millions of undocumented immigrants, nor would it speak to the hopes of “Dreamers,” who came illegally with their families as children. Both desires have been on the wish list of Democrats for years.

Senate Minority Leader Mitch McConnell supported the negotiated compromise, as apparently did most Senate Republicans and Democrats. But Donald Trump didn’t. He privately urged Congressional Republicans to reject it, because he feared its success would help President Biden in the 2024 election. Trump hoped to keep border problems going as a campaign issue.

Instead, Trump called for adoption of H.R. 2, a bill in the House that was much tougher on illegal immigration. “I do not think we should do a Border Deal, at all, unless we get EVERYTHING needed to shut down the INVASION of Millions and Millions of people,” he wrote January 16 on Truth Social.

Congressional Democrats were not about to approve H.R. 2, so progress on undertaking the immigration problem was impossible unless the Senate compromise could be enacted. Most House Republicans, under pressure from Trump and fearing for their own political futures, lined up to agree with Trump’s position.

So when the bill came to a vote on the Senate floor on February 7, it failed. Another try in May produced the same result.

The irony of the compromise is that Republicans had insisted that before they would agree to billions of dollars for aid to Ukraine, the Democrats would have to agree to stiffer controls on the border. That’s what the compromise attempt was all about. But when the compromise proposal included both tougher immigration regulations and Ukrainian aid, Republicans bowed to Trump’s demand and deep-sixed the bill.

As a result, the nation has continued to grapple with difficult levels of illegal immigration throughout 2024.

The future of immigration reform will depend on the results of this week’s election. But unless the election brought a huge red wave, with overwhelming Republican victories in both the House and Senate and Trump’s return to the White House, Democratic opposition to hard-line proposals from Trump and MAGA Republicans in the House will prevent any progress.

The result will be continuation of the same immigration headache that has plagued the United States for years.

The best course forward would be adoption of the compromise worked out by Senators Lankford, Murphy, and Sinema.