The immigration "compromise"

On Sunday, a group of Senators — James Lankford (R-OK), Chris Murphy (D-CT), and Kyrsten Sinema (I-AZ) — announced that they had reached a bipartisan "compromise" on a bill to overhaul the nation's immigration system and provide more funding for wars in Ukraine and Gaza. 

The deal was praised by President Biden, who said the bill "will make our country safer, make our border more secure, treat people fairly and humanely while preserving legal immigration." House Speaker Mike Johnson (R-LA), however, panned the proposal, calling it "worse than we expected." On Truth Social, former President Trump blasted the deal as a "great gift to the Democrats, and a Death Wish for The Republican Party."

But despite the rhetoric, the proposal would create severe restrictions on asylum-seeking migrants that are similar — and in some ways harsher — than those imposed during the Trump administration. It would upend a bedrock principle of American immigration law: people who come to the country seeking asylum have a right to have their claims adjudicated. 

To sort through the rhetoric and get to the facts, Popular Information spoke to Lee Gelernt, Deputy Director of the ACLU's Immigrants’ Rights Project. Gelernt has been the lead attorney on several major immigration-related lawsuits, including actions challenging Trump's practice of separating immigrant families and Trump and Biden's use of public health law to expel migrants seeking asylum without a hearing. 

This interview has been edited for length and clarity. 

Popular Information: If this bill became law, what would be the consequences for migrants at the border?

Lee Gelernt: I think we're likely to see the expulsion authority triggered very quickly, because it can be triggered based on 4,000 or 5,000 [average] daily encounters over a seven-day period. If the expulsion authority is triggered, then there will be no asylum for people who cross in between ports of entry. That is a necessary thing for many asylum seekers — as Congress has previously recognized, experts recognized, [and] the international community has recognized. Because cartels push them to places [other than ports of entry] to cross, because the ports of entry can be hundreds of miles away, and because there are very few spots that remain at the ports of entry. And so people will not be allowed to apply for asylum, that is the most significant. 

The second point is even when that expulsion authority is not triggered, there's a new expulsion process that's been created. There's no court review of the denial of asylum, except in the most rare situation. Congress has continuously tried to restrict judicial review over immigration decisions over the past few decades. But the one thing they always carved out is asylum. Given the life and death stakes, you can't leave it just to an agency official to decide whether someone is entitled to asylum or not. This new process would allow people to be denied asylum and sent back to danger based solely on the say-so of an agency official. 

An asylum officer would make the determination. And there would be an appeal, but only to another asylum officer. Nowadays, if you're denied asylum, and you think you were improperly denied it by the agency, you can go to court. That's so important because the courts reverse asylum cases. But even when they don't, the fact that asylum officers know the courts are sitting on top of them to correct errors — that keeps them within the lines. 

PI: How does the bill announced Sunday compare to the Title 42 policy implemented by Trump and extended by Biden?

Gelernt: I was actually the lead counsel on the Title 42 challenges. From my vantage point, this is modeled under Title 42. 

During Title 42, everyone tried to justify ending asylum by saying, "Well, this is a once in a lifetime, unprecedented pandemic. And so we're just doing this temporarily." But what it did is sort of normalize the idea that maybe America doesn't need asylum, despite our promises after World War II that we would never send people back to danger without a hearing. 

This would make shutting the border down permanent, and doing it based solely on numbers, and what we think is an inconvenient number of people to screen.

PI: The supporters of this bill are saying it is necessary because too many people are coming to the border. Did Title 42 reduce the number of people attempting to enter the country? Do you think this bill would?

Gelernt: Title 42 did not stop people from coming to the border, and everybody who thinks it would have was clearly mistaken or fooling themselves. And the reason is, because migrants who are desperate are going to leave their country and not worry about what U.S. policy is. They're going to escape because they're desperate. Moreover, they rarely, if ever, know what U.S. policy is, it's just too complicated to know what policy is in place at any given time.

The really odd thing about this bill is people are thinking, "Well, if they know the border is closed, they won't come." Well, that wasn't true in Title 42, but here, there's no way for them even to know whether the border is going to be closed. Think about the person in Honduras who's trying to escape and they know it's going to take six weeks to two months to get here. How are they going to know whether the border was closed under this bill or not? The border is going to open and shut depending on how many people that have been coming in any given week. You can't possibly plan ahead to know whether the border is going to be shut. So people are going to come to the border, they're desperate, they're going to come. 

PI: Despite the severe limitations of asylum-seekers, House Republicans came out pretty strongly against this bill. Setting aside any political motives for opposing the bill, what else would House Republicans be looking for in border legislation?

Gelernt: I think they would probably prefer to have something like Remain in Mexico. They would probably like more detention authority. I think they want to get rid of the parole authority the President uses to help desperate people legally come to the U.S. And I don't think they want work authorization either. That's one thing that this bill does, is if people passed the initial screening, they don't have to wait six months for work authorization like they do now. Asylum seekers can work as soon as they pass the screening, which I think is a good thing. 

PI: On social media, some Republicans were complaining that the bill provided migrants with attorneys. 

Gelernt: The bill provides lawyers for children 13 and under, which is both a humane thing, and a logical thing from an efficiency standpoint. With children, you're going to have to have repeated continuances for them to try to find lawyers, or they're not going to understand what's going on. If you give them lawyers, the whole system can be more efficient. And it's also more humane, because right now, there's no guarantee of a right to a lawyer no matter how young the kid is.