By Dara Lind | December 1, 2023

Members of the U.S. Senate are currently negotiating a deal to continue funding the federal government next year, as well as providing military aid to Ukraine But the cost could be the federal government’s ability to provide humanitarian protection to migrants in need.

According to public reporting, Senate negotiators are considering several potential restrictions to both asylum policy – making it harder for people to seek legal status for humanitarian reasons after arriving in the United States – and the federal government’s parole power, which allows the executive branch to allow people to enter the U.S. temporarily for a particular reason and period of time.

Crucially, the public doesn’t know what exactly the senators are considering. Reporting has been imprecise – and often reflects some confusion about how immigration policy works right now. What that means is that no one can clearly explain to the public or policymakers what the potential costs (or benefits) of any proposal would be.

That opacity makes it much more likely that the ultimate deal will both be harmful to migrants and that it won’t be effective in achieving border hawks’ goal of reducing the number of asylum seekers. In other words, Congress is at risk of repeating, yet again, the exact same cycle of crisis and crackdown we’ve seen for the last decade.

Indeed, the little we know about what’s on the table indicates that’s exactly what might happen.

The clearest proposal on the table – and one that, according to public reports, has the broadest support among negotiators – would raise the standard for an initial asylum screening interview, requiring an asylum seeker to show a “reasonable fear” of persecution to an asylum officer in order to be allowed to plead their case before an immigration judge, rather than the current standard of “credible fear.”

Because these terms are so abstract, it’s easy to assume either that this change wouldn’t be meaningful, or that – as border hawks hope – it would be meaningful enough to substantially reduce the number of people allowed to stay and deter even more from trying to come to begin with. The sad reality is that it would most likely be neither: it wouldn’t do enough to act as a meaningful deterrent, but it would harm individual people who’d be deported back to persecution because they faced a more difficult process to make their case.

For decades, federal law has included a commitment (in line with international humanitarian agreements) not to return people to countries where they would be persecuted or tortured. In standard immigration proceedings, an immigration judge is responsible for making sure this commitment is upheld. When Congress created the “Expedited Removal” process in 1996, which allows immigration officials to deport some migrants without a hearing before a judge, it needed some other way to ensure that victims of persecution weren’t illegally deported. Congress’ solution was the credible fear interview process.

Credible fear interviews are already a difficult and confusing experience for migrants because of the circumstances in which they are conducted. Most people go through these screenings without access to legal information on the process, let alone a lawyer. They are asked to demonstrate how they would qualify for protection under our asylum laws without the ability to gather or present evidence.

To pass the credible fear interview under current law, an individual needs to demonstrate a “significant possibility” that they will ultimately win asylum before a judge. This is a rigorous standard that requires more than just “significant evidence.” However, it does not require an asylum seeker to immediately demonstrate that they are more likely than not to win their asylum case. In other words, under the current standard, a tie goes to the asylum seeker.

The proposal on the table in the Senate negotiations would raise that to a “reasonable possibility” standard – which requires showing by “a preponderance of the evidence” that the judge would ultimately rule in the applicant’s favor. Someone with a 50% chance of prevailing before a judge would still be ordered deported under this standard.

Importantly, very few migrants – including many whose experiences would easily qualify them for asylum before a judge – understand how to meet these standards. The more stringent, adversarial, or time-constrained the interview is, the higher the risk that a migrant who could win their asylum case in front of an immigration will “fail” their interview anyway – and that they will be deported to persecution in violation of U.S. law.

What makes it especially bizarre that the senators are contemplating this change is that the Biden administration has already made this exact change for many asylum seekers – on a temporary basis — and it clearly hasn’t reduced the number of people coming to the U.S. enough for border hawks.

Since May, under the regulation known as the “Circumvention of Lawful Pathways” rule (which is set to remain in effect through May 2025), nearly all asylum seekers who cross between ports of entry are already required to meet the “reasonable possibility” standard to qualify for asylum and continue with their cases. This change has reduced the percentage of people who pass their screenings – while over 80% of asylum seekers passed interviews before the implementation of Title 42 (which eliminated them) in 2020, passage rates are currently in the 60s.

This isn’t as significant a change as the Biden administration initially hoped (and claimed) the regulation would produce. Indeed, it hasn’t stopped members of Congress from feeling that asylum policy is an urgent issue that needs to be addressed in the current negotiations. It’s unclear what, exactly, Congress thinks its proposal would do that the current policy hasn’t done.

But the downside risk is real: it increases the chance that people with valid protection claims will be erroneously and illegally deported.

The other proposals on the table – which haven’t been clarified to the public – seem at least as bad, if not worse.

A statement from several Democratic senators, as well as some public reporting, indicates that negotiators are considering broad bans on whole groups of asylum seekers – such as, perhaps, barring people who traveled through certain countries en route to the United States from seeking asylum here. This proposal was a key part of a Trump-era regulation that would have made asylum essentially impossible for any migrant to access – part of that administration’s war on asylum that Democrats decried at the time. And depending on how the provision is drafted, it could even apply to people arriving on visas.

Reports also indicate that Senate negotiators might place restrictions on the president’s authority to issue humanitarian immigration parole – a key power that’s been used for many purposes over the past several decades. The Biden administration has used parole to offer temporary protections to Ukrainians and Afghans fleeing war; to offer two-year stays to some Cubans, Haitians, Nicaraguans, and Venezuelans; and to allow people stuck in the visa backlog to reunite with their family members while waiting to get to the front of the line.

Some of these proposed restrictions – such as a cap on the number of people who could be granted parole in a given year – would radically alter the nature of the parole power. Furthermore, it would put untold numbers of parole applicants in limbo – they would have applied to come to the U.S. legally but be unable to have that application approved for an unknown period of time. Raising someone’s hope that they could come to the U.S., then dashing it, could make them more likely to come to the U.S. without papers. This is already happening with some applicants for the CHNV parole program, for example.

That’s the kind of unintended consequence that happens all the time in U.S. immigration, even with the most carefully-thought-out policy. When laws or policies are changed in a rushed and opaque manner, there’s barely an opportunity to foresee what the consequences will be at all – meaning it’s just as likely that the change will have unintended effects as that it will do what it’s supposed to do. Unfortunately, all we can really say now is that the Senate negotiations could be a disaster for the U.S. asylum system.

  asylum, immigration, senate