Will Congress Make a Deal on Border Policy in the New Year? 

Lawmakers headed home for the holidays this week without reaching a deal to both curtail illegal immigration at the southern border and provide defensive aid to Ukraine, Israel, and Taiwan. But Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell issued a joint statement Tuesday night emphasizing negotiators’ “encouraging progress” and expressing confidence that a deal will come together in the new year. 

“Challenging issues remain, but we are committed to addressing needs at the southern border and to helping allies and partners confront serious threats in Israel, Ukraine and the Indo-Pacific,” Schumer and McConnell said. “The Senate will not let these national security challenges go unanswered.”

The optimistic case that a deal will eventually come together begins with the fact that a lot of bipartisan will to get to yes exists—not just among congressional leadership, but rank-and-file members as well.

Democratic Sen. John Fetterman of Pennsylvania, for example, has pointed to the “astonishing” statistic that there were 270,000 encounters in September on the southwest border. “This isn’t a Fox News kind of statistic. This is the government’s,” he told Politico. “You essentially have Pittsburgh showing up there at the border” in one month. There were 2.4 million encounters on the southwest border in fiscal year 2023—a 40 percent increase from 2021 and a record high. Immigration remains one of the issues on which President Joe Biden’s approval rating is the lowest, and the White House has said he’s willing to make “significant compromises on the border.” 

As GOP Sen. Mitt Romney made clear, even moderate Senate Republicans staunchly allied with Ukraine have decided stricter border security measures are a prerequisite for any additional military aid for Ukraine in its fight against Russian aggression. “If you look over the last, say, 10 to 20 years, there were about 1,000 people per day that were—if you will, ‘catch and release’—coming into the country and being released into the country,” Romney told The Dispatch earlier this month. “Now it’s 10,000 a day. So we want to get back to the average, and we want to do things that get us back to the average.” 

“Unless we get that done, we’re not going to have a safe country,” Romney added.
“So our view is that the president put money in the [security] supplemental to look at the border, that’s exactly what we’re doing.” Biden’s initial proposal included about $13 billion to hire more border patrol agents and asylum officers, but it wouldn’t have made any major changes to immigration laws.

What exactly do Republicans want? A GOP Senate aide familiar with negotiations pointed to a Republican proposal released in early November—by Sens. James Lankford of Oklahoma, Tom Cotton of Arkansas, and Lindsey Graham of South Carolina—as the Senate GOP’s first offer. The proposal included elements drawn from H.R. 2, the House immigration bill passed by Republicans in a party-line vote earlier this year. House Speaker Mike Johnson has said that additional Ukraine aid is “dependent upon enactment of transformative change to our nation’s border security laws”—widely interpreted to mean at least some provisions found in H.R. 2.

Lankford is now serving as the chief Republican representative in negotiations with Democratic Sen. Chris Murphy of Connecticut and independent Sen. Kyrsten Sinema of Arizona. The Oklahoma Republican has been tight-lipped in public about specific compromises being discussed, but he has openly talked about major problems the group is trying to address.

The explosion of asylum claims, according to Lankford, began during former President Barack Obama’s second term. Under the Immigration and Nationality Act, an individual may seek asylum in the United States if they have “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” but historically only a small percentage of migrants have met that criteria. “Cartels started experimenting with moving people in, asking for asylum to see if they could find a way to break the system,” Lankford said. Due to overwhelming numbers, people making asylum claims were sometimes released “in some places, seven, eight years before they get the [asylum] hearing.”

One solution being discussed by negotiators is raising the threshold for passing an initial asylum screening at the border. The original Senate GOP proposal would raise the standard such that only those with claims of “credible fear of persecution” that are “more likely than not” to ultimately pass muster would make it through the initial screening. According to the GOP aide familiar with negotiations, Democrats found “more likely than not” too high of a bar; a potential compromise would raise the standard to a “reasonable possibility” the asylum-seeker would be persecuted—a standard included in a Trump administration Department of Homeland Security regulation proposed in 2020.

Progress on such thorny issues may be a sign of hope for a deal, but plenty of unresolved matters remain. Republicans, for example, want to curb the use of “humanitarian parole,” which is supposed to be used on a “case-by-case” basis to grant temporary admittance to the United States for urgent humanitarian reasons or significant public benefit, but has been used broadly by the Biden administration. The Associated Press reported earlier this month that “nearly 270,000 people had been admitted into the country through October” under the White House’s humanitarian parole program for people from Cuba, Haiti, Nicaragua, and Venezuela, and that an additional “324,000 people have gotten appointments through a mobile app called CBP One that is used to grant parole to people at land crossings with Mexico.” The Biden administration has said its expanded use of parole is intended to create “safe, orderly, and humane” pathways for migration.

The issue seems likely to be a sticking point. “We’re certainly not anywhere near a deal on parole,” the Republican Senate aide familiar with negotiations told The Dispatch. “We’ve barely scratched the surface on talking about it.” Axios reported Tuesday that “Biden officials have told Hispanic lawmakers that they are resisting GOP demands to limit the administration’s authority to release migrants through the legal tool known as parole.” The report didn’t say the administration had ruled out compromise entirely, but that White House officials had “told the lawmakers that they would brief them again—before any potential deal is reached.”  

Another idea being discussed by negotiators is granting the executive branch the authority—or possibly requiring it—to expel migrants regardless of their humanitarian or asylum claims once the number of border crossings surpass a certain threshold. This would essentially be a restoration of some of the authorities the Trump and Biden administrations deployed during the coronavirus pandemic under Title 42—but without trying to rely on a public-health rationale that no longer exists. Republicans would like such a requirement to automatically take effect when a certain threshold of illegal crossings is passed. Democrats, however, fear how a future Republican president would exercise such authority. Republican Sen. Thom Tillis of North Carolina has said he’d like that authority to kick in at 3,000 crossings per day, while Democrats prefer 5,000.

That gap is just one of several areas of disagreement that will need to be ironed out before any deal is reached—but both sides remain hopeful a broader agreement is possible. “[Democrats are] dug in on a lot of things right now,” the GOP Senate aide said. “I don’t know [that] that means that they aren’t willing to compromise.”