Biden Considering Changes to Border Policies: Expulsion Law, Mandatory Detention, and More Deportations on the Table

On Tuesday, the Biden administration signaled to Congress its openness to support a novel border authority enabling the expulsion of migrants without asylum screenings.

In a bid to garner Republican support for aid to Ukraine, the administration also proposed a substantial increase in immigration detention and deportations, as disclosed by four sources to CBS News.

The White House communicated to Senate Democrats that these stringent immigration policy revisions could be endorsed within the negotiations on President Biden’s emergency funding request, a comprehensive $100 billion package covering military aid to Israel, Taiwan, and Ukraine, along with funds for reinforcing border enforcement and hiring additional immigration officials. Over recent weeks, a select group of senators has been striving to forge an immigration enforcement agreement, with Republicans linking further assistance to Ukraine to policy changes aimed at curbing the surging levels of illegal border crossings.

During a press conference at the White House on Tuesday, Mr. Biden said his team is “working with Senate Democrats and Republicans to try to find a bipartisan compromise, both in terms of changes in policy and [to] provide the resources we need to secure the border.” He said he has “offered compromise already,” adding that “holding Ukraine funding hostage in an attempt to force through an extreme Republican partisan agenda on the border is not how it works — we need real solutions.”

In the past few days, the Biden administration has heightened its interactions with lawmakers. According to three individuals familiar with the matter, Homeland Security Secretary Alejandro Mayorkas began discussions with Senate negotiators this week, and he was present on Capitol Hill on Tuesday afternoon during ongoing talks aimed at securing a deal before Congress recesses for the holidays.

A senior Department of Homeland Security official clarified that Mayorkas and other DHS officials are offering “technical assistance” to lawmakers and their staff, emphasizing that they are not actively negotiating policy proposals.

In particular, the White House expressed its willingness to endorse an extensive legal authority, enabling U.S. border officials to promptly expel migrants without undergoing asylum claim processing. This proposal essentially resurrects the Title 42 pandemic order from the Trump era, providing officials the ability to temporarily suspend U.S. asylum law without a public health rationale.

Additionally, the administration supports a widespread extension of expedited removal, a procedure allowing immigration officials to deport migrants without court hearings if they do not seek asylum or if they are unsuccessful in their initial asylum interviews. Currently confined to the border region, this program would see broader implementation under the proposed changes.

Furthermore, the White House is open to requiring the detention of specific migrants permitted entry into the country until the resolution of their claims. The logistics of this provision remain unclear, given that the U.S. government has never had sufficient detention space to accommodate all migrants crossing into the country illegally.

In previous statements, administration officials and some Senate Democrats have also expressed a readiness to elevate the initial screening standard for “credible fear” interviews. This adjustment would impact migrants seeking to avoid deportation under expedited removal procedures.

White House spokesperson Angelo Fernández Hernández stated that the administration does not have firmly established policy positions in the congressional negotiations.

“The White House has not signed off on any particular policy proposals or final agreements, and reporting that ascribes determined policy positions to the White House is inaccurate,” Fernández Hernández said. “The President has said he is open to compromise and we look forward to continued conversations with Senate negotiators as we work toward a bipartisan package.”

The Biden administration’s willingness to consider sweeping and restrictive alterations to U.S. asylum and immigration laws, reminiscent of policies from the Trump era, could enhance the chances of garnering Republican support for its foreign aid package. However, even if a bipartisan agreement emerges in the Senate, the approval of resulting legislation in the House remains uncertain.

Earlier this year, House Republicans passed H.R. 2, a bill incorporating much stricter asylum and border provisions. These provisions included the reinstatement of migrant family detention and the “Remain in Mexico” policy, along with significant constraints on humanitarian parole authority. This authority has been utilized by the Biden administration to welcome a substantial number of refugees and migrants from Afghanistan, specific Latin American countries, Haiti, and Ukraine.

The administration’s willingness to negotiate restrictive immigration changes with Republicans has generated criticism from migrant advocates, progressive Democrats, and Latino lawmakers. They have urged the White House and Senate Democrats to avoid agreeing to permanent asylum restrictions.

“Destroying the asylum system will not fix the southern border,” Democratic Rep. Pramila Jayapal said Tuesday. “We did not spend years fighting this agenda under Trump only to give in to Senate Republicans’ extreme demands now.”