Mexico Migration Security & Defense United States and Canada

Issue Brief

February 21, 2024

This year’s bipartisan immigration bill offers a border blueprint for 2025

By Thomas S. Warrick

On February 7, the US Senate blocked consideration of a bipartisan compromise proposal for border security and immigration, just three days after its public release. The compromise bill was the result of painstaking, months-long negotiations, and may have a longer shelf life than the past few weeks’ political frenzy suggests. While the bill has some flaws, it was the best achievable, bipartisan approach the United States could get in 2024 to break a decades-long gridlock on border security and immigration policy. This landmark bill is worth understanding because it may be the starting point for major reforms in 2025 no matter who wins the White House and the two houses of Congress in the November 5, 2024 election.

How we got into this mess

To simplify this divisive debate, many Republicans want fewer migrants allowed into the United States. Republicans have particularly focused on what they call “catch and release,” a term Democrats consider pejorative (because it likens desperate people fleeing persecution or economic hardship to fish being caught for sport).

When migrants without visas enter the United States, often fleeing violence and extreme poverty in their home countries, many claim political asylum. Current law says that anyone who is physically present on US territory, no matter where they enter, with or without authorization, can ask for asylum. Border Patrol or other Customs and Border Protection (CBP) officials can deport individuals entering without authorization using an administrative process called “expedited removal” without going to immigration court, but not if the individual asks for asylum. Those asking for asylum are interviewed under a low initial bar that allow them to pursue their asylum claim in the United States through immigration court if they have a “credible fear” of persecution in their home country. However, because there are too few immigration judges and courts, it takes up to five to seven years to adjudicate most asylum claims. The federal courts will not allow most migrants without visas to be kept in detention for such a long period, because they have not been found guilty of a crime and there are not enough detention beds for millions of asylum applicants. This is especially true of family groups with minor children, for which judicial decisions against long-term detention are even more strict. Hence, judicial decisions require asylum applicants to be released until their cases are heard by an immigration judge.

However, current law says applicants cannot legally work in the United States until six months after they file their asylum claim in immigration court or with the Department of Homeland Security’s (DHS’) US Citizenship and Immigration Services (USCIS)—a restriction in the law that is not subject to adjustment either way by the executive branch. Until migrants get a work authorization document from USCIS or a decision on their asylum claim, most depend on public aid, funds from relatives, friends, or charities, or work without legal authorization. Currently, more than half of all asylum applications are denied, but many migrants get to live and work in the United States for years until they receive that final decision and, even then, many will not be sent home. This is what entices more than a million migrants a year to pay rapacious human-smuggling cartels so they can make a dangerous, costly trek north through Central America and Mexico to arrive at the southwestern US border.

Democrats and migration advocates, for their part, see the United States as a safe haven for those fleeing persecution and desperate poverty, and say the United States can and should allow asylum claims at the US border. Most Democrats also want to see those who came to the United States without authorization as children receive legal status and a pathway to citizenship. A significant number would extend this offer to law-abiding, hard-working adults who are already here. Most Republicans oppose any kind of what they call “amnesty” for those who came to the United States without authorization. Some businesses, however, see a benefit to having more workers in the United States, especially for low-wage service jobs.

US public opinion, in broad terms, wants to see an immigration system that is both just and fair—allowing deserving applicants to get asylum, while denying entry to those without a valid legal claim.

President Joe Biden was elected in 2020 after campaigning on reversing the restrictive immigration policies of the Donald Trump administration—but the Biden administration did not request additional resources to process large numbers of additional migrants. Starting almost as soon as Biden signed new immigration executive orders on January 20, 2021, congressional Republicans demanded the administration stop the increasing numbers of migrants who began arriving without visas at the US southwest border. In April 2022, the Biden administration released a detailed plan to address the rising numbers, but did not request additional funding for it. As the COVID-19 pandemic eased in 2022, the Biden administration prepared to rescind the authority under federal public-health law used by the Trump administration to turn many migrants away without giving them a hearing on their asylum claims. (Legal challenges to those Trump policies were before the Supreme Court in January 2021, but were dropped after the Biden administration reversed some of the policies.) The Biden administration announced a number of post-pandemic new steps in January 2023, which took effect in May. As has happened in the immediate aftermath of every major immigration policy change in the Obama and Trump administrations, the numbers of migrants initially went down, but then began to increase.

Significantly—and unfortunately—the June 2023 budget deal between Biden and then-Speaker of the House Kevin McCarthy (the “Fiscal Responsibility Act of 2023”) put fiscal restraints on the budgets of the departments of Homeland Security, Justice, Health and Human Services (HHS), and State—the departments that collectively fund the border and immigration system. For 2024 and 2025, the only way these departments can get additional funds to address growing needs is through emergency supplemental appropriations.

Understanding the Biden’s administration’s groundbreaking October border supplemental

On October 20, the Biden administration submitted a $105 billion supplemental spending request for Ukraine, Israel, and the Indo-Pacific, including $13.6 billion for border security and immigration. This package responded to Republican demands to condition more money for Ukraine’s defense on the Biden administration doing more about the southwestern border. Unlike regular budget submissions, in which each cabinet department lays out its separate request—making it difficult to see how cross-department programs support each other—this time the administration buried at the end of a detailed fact sheet an excellent laydown that showed with clarity how all the parts of the administration’s border supplemental request worked coherently. The administration wanted to do six things together:

• Address the delays in processing asylum and other cases by increasing the number of immigration judge teams by 375, around a 60-percent jump.
• Give CBP an additional $4.5 billion for expanded operations, including money for Federal Emergency Management Agency (FEMA) grants to local governments and nongovernmental organizations to provide shelter and services to migrants who were released after being given a notice to appear for their asylum hearing. This would help take the burden off states and cities that otherwise would need to provide aid for these migrants, because most applicants could not legally work. CBP would also get $849 million for inspection technology to detect smugglers trying to get migrants, drugs, and contraband into the United States.
• Provide additional government attorneys to process the increased number of asylum cases, and for additional investigators and other personnel, via $2.5 billion for the DHS Immigration and Customs Enforcement (ICE).
• Add asylum officers and technology to more quickly handle the increased workload of processing claims, with $755 million for DHS’ USCIS.
• Increase funds for law-enforcement agencies—including the Federal Bureau of Investigation and the Drug Enforcement Agency—for support functions, including testing DNA to ensure that adult migrants were not making false claims about being related to the children traveling with them.
• Increase migration and refugee-assistance programs at the Department of State by $1.3 billion.

The administration’s logic was to increase the capacity of the entire system that processes asylum and other immigration claims, thus shortening the time that applicants waited for a hearing and reducing the societal burden on supporting migrants until they got decisions in their individual cases. The additional funding for enforcement—and for people, technology, and programs to address smuggling of people and illegal drugs like fentanyl—was intended to respond to both Republican and Democratic concerns.

Administration officials testified before the House and Senate appropriations committees, conducted private briefings on Capitol Hill, and spoke to professional organizations, but did not embark on a major, nationwide public-outreach program to explain the logic of the border and immigration appropriations package to the US public.

Figure 1: Cases pending before immigration courts, fiscal years 1998-2022

If anything, the administration’s border and immigration supplemental could be criticized for not being large enough to erase the growing backlog in asylum cases that began to accelerate during the Trump administration. (See Figure 1.) The best available public study of immigration-court capacity said that to erase the backlog of cases that existed at the end of Fiscal Year 2022 would require increasing the number of immigration judge teams by two hundred each year for five years—implying that the administration’s request for 375 immigration judge teams needed to be thought of as a down payment, not an end state. The total number of pending asylum cases is now even greater, more than three million, likely requiring even more immigration judge teams to resolve the backlog over a five-year period.

Understanding the landmark bipartisan Senate compromise bill

After more than ten weeks of intense negotiations, the bipartisan Senate compromise bill that emerged was the first serious effort in more than a decade to do what Congress has almost never done on border security and immigration: combine major policy changes with the resources required to make those changes succeed. Congress traditionally separates authorizations and appropriations into separate committees that jealously guard their turf. As an Atlantic Council study in December 2020 explained, congressional responsibility for the homeland security enterprise is divided among eleven major committees in the House and nine in the Senate. The executive branch is little better, with four major cabinet departments having important roles (DHS, Justice, HHS, and State) and major policy decisions led by the National Security Council and the Domestic Policy Council, but funding decisions controlled by the Office of Management and Budget. As a previous Atlantic Council report highlighted, aligning policy and resources is a chronic problem in the homeland security enterprise. The bipartisan Senate supplemental, negotiated by key senators with Homeland Secretary Alejandro Mayorkas and the White House, represented a landmark in uniting policy changes with increases in resources that are needed to make the policy changes work.

First, on the resource side, the bipartisan Senate compromise proposed to appropriate more money for border and immigration security ($20.3 billion) than the administration requested ($13.6 billion). The bipartisan bill also made major shifts in how that money was allocated.

Some of these shifts were fundamental, and reflected Republican skepticism about how migration cases should be processed faster and more efficiently if the compromise version had passed.

• The Department of Justice’s request was cut substantially, but preserved a significant increase of approximately a hundred immigration judge teams. This reduction in judicial capacity from the administration’s October request was offset by an increase in the number of USCIS asylum officers, who would have begun to process cases under the negotiated policy changes for newly arriving migrants who otherwise would have had to wait years for an available immigration judge to hear their legal claims.
• ICE would get more than three times the requested amount, with the additional funding going to increase the number of personnel, increase detention space to 46,500 beds, and increase the number of removal flights to return migrants whose claims are denied. To fully unlock the full appropriation, ICE would need to report to Congress that it has increased detention space and the number of removal flights.
• USCIS would get substantially more than initially requested to increase the number of asylum officers who, under the new rules made possible by the compromise, could make decisions in most asylum cases.
• The compromise version substantially cut funding for supporting migrants awaiting hearings, but still proposed to give FEMA $1.4 billion from CBP for the shelter and services program for migrants awaiting a decision—which, under the new policy changes, should take six months rather than five to seven years.
• The Department of State did not get as much as it requested for migration and refugees, and much of the funding it would have received was to increase the capacity of Latin American countries to receive returning migrants whose claims were denied.

The policy changes in the bipartisan Senate version were compromises intended to bring on both Republican and Democratic support:

• No longer would there have been a low bar that allows most asylum applicants to stay in the United States for years while waiting for an immigration judge to hear their case.
• Instead, thousands of USCIS asylum officers would have made faster decisions on most asylum cases, ideally within six months, without waiting years for the case to be reviewed by an immigration judge. All asylum applicants would have undergone thorough security vetting. Each applicant would need to prove to the asylum officer by “clear and convincing evidence” that they qualify for asylum. The expectation, based on experience, was that most applicants would not qualify for asylum, but those who are found eligible would get immediate work authorization so they can support themselves.
• Asylum applicants would get the right to counsel, but at their own expense. (Children and those deemed incompetent would be eligible for government-provided counsel.)
• There was a limited appeal option for applicants whose requests were denied, but most cases would not have to be heard by courts. Those found not eligible for asylum would have been removed from the United States. ICE would have had significantly greater resources to carry out removals of those who did not qualify for asylum protection under the Convention Against Torture or other US laws.
• If the number of inadmissible migrants exceeded 8,500 in a single day, or five thousand a day over a seven-day period, the bill would have required the Secretary of Homeland Security to “close” the border to asylum claims. Migrants could still claim protection under other US laws, such as the Convention Against Torture, but the standard of proof for such claims is higher and very few migrants qualify for it. Based on current levels of migrants arriving at the southwest border, the border would have been “closed” to asylum claims for most of the past four months, according to those involved in the negotiations.
• Afghan allies resettled in the United States after the August 2021 US withdrawal from Afghanistan would have been allowed to stay and become permanent residents after they passed security vetting.
• The bill would have required additional training for Border Patrol officers, improvements in ICE’s “alternatives to detention” program, and upgrades to technology at CBP and USCIS.
• USCIS and ICE would get streamlined hiring authorities to hire the thousands of new officers and agents required to implement the bill.

The bipartisan Senate bill went a long way toward addressing long-time Republican concerns. If the bill had been passed and implemented (and funded) in subsequent years, it would have significantly reduced the use of “catch and release” because those migrants who qualified for asylum would get a much faster determination and be eligible for work more quickly. Those not eligible would have been removed from the United States much more quickly than at present.

For Democrats, the compromise bill did not address important issues like adults who came to the United States as children without authorization—called Dreamers, from the proposed Development, Relief, and Education for Alien Minors (DREAM) Act. Many Democrats also objected to the new asylum restrictions. However, for Democrats and migration advocates, the bipartisan Senate compromise promised faster determination of asylees’ eligibility and additional resources, including faster work authorization, to integrate those eligible into US society. This represented a significant improvement over the present situation, in which cities are being overwhelmed by needing to support those awaiting their court dates.

The bipartisan Senate compromise, while a definite improvement over the alternative of current funding levels and nothing else for a year, did have its flaws and limitations.

• The most serious concern was that the additional resources would not be sufficient to process all asylum applicants within six months of arrival. But even if more personnel and resources would ultimately have been required, the compromise bill was an important first step.
• The system set up by the bill would have taken at least two years to become fully operational—hiring and training the additional officers, agents, judges, and other personnel, buying the additional screening technology, and expanding needed facilities. In the meantime, the backlog of three million cases would not be reduced, and might increase further.
• The bill did not clarify the status of migrants already here, leaving millions of people in limbo for years, waiting for their claims to be heard. There is no bipartisan consensus on what to do about this.
• The bill tried to prioritize dealing with the current influx of new arriving migrants and did not have a clear plan or the resources to address the backlog of more than three million pending immigration cases. Even so, the compromise was a rational approach to the increasing numbers of migrants arriving every week. In an ideal world of bipartisanship, additional work would need to take place to develop an approach for eliminating the current backlog of cases.
• One of the most fundamental problems with the bipartisan Senate bill was that it did not end the incentives for people to pay smugglers to get them to the US southwest border. To be fair, a small group of senators trying to negotiate a complex legislative package has limits on what it could try to achieve in ten weeks. But the bipartisan Senate bill can be fairly described as treating the symptoms of the problem, not the underlying condition. Even so, as doctors say, the first priority is often to stabilize the patient before treating the underlying conditions. There are three approaches that could help with the underlying conditions.
  • Since July 2021, the Biden administration has had a “root causes” strategy, directed by Executive Order 14010, focused on reducing the “push” factors that drive migrants to leave home and make the dangerous and (to them) expensive journey north. Republicans, in particular, are leery of Democratic efforts to address the root causes of what is a global migration crisis. It is true that violence, extreme poverty, and the effects of climate change on agriculture are driving millions of people worldwide to believe they have no choice but to leave their homes in Latin America, Africa, the Middle East, or South Asia and come to the United States, Europe, or richer countries in Asia. Solving the root causes driving global migration will take a decade or more, at a global price tag that starts in the hundreds of billions of dollars, and there is no bipartisan consensus in Congress ready to take on even a significant part of this challenge.
  • Deciding who is eligible for asylum before migrants arrive at the southwest border would be a more practical, but still ambitious, approach. The Biden administration proposed this as a policy initiative and set up small “Safe Mobility Offices” in Guatemala, Costa Rica, Ecuador, and Columbia that are under-resourced but starting to show promise. However, the administration has not put forward publicly a comprehensive plan (that is, policy plus personnel plus resources plus legislative language) comparable to the October border supplemental or the bipartisan Senate bill. Under this approach, people in Latin America could appear before a US official in their home country, or at least in a nearby safer country, and get a binding determination of their eligibility for asylum before they travel thousands of miles in the hands of dangerous smuggling cartels. Setting up asylum “overseas processing centers” in countries like Colombia, Panama, or Mexico would probably be more efficient and less costly overall than dealing with more than one million people per year coming into the United States who are hoping they can win their cases—when the reality is that very few will succeed. (The United States currently does almost all refugee interviews and processing overseas, so there is precedent for this model.) Overseas processing centers for asylum applicants would take several years to develop, and each center would effectively become a small “American” city of several thousand US or international citizens (including US asylum officers, support staff, and security) in the middle of Mexico or several Central American countries. This would require negotiations comparable in complexity to setting up a US military base in a foreign country—which the United States has done many times. Even if a civilian overseas processing center is less expensive than a military base, three or four would likely cost tens or hundreds of millions of dollars each once salaries, housing, and facilities are included.
  • Tackling the criminal cartels responsible for most of the smuggling is another line of effort the Senate compromise did not emphasize. This would require increased efforts by US and Latin American law enforcement, military, intelligence, judges, and prisons. The limited success the United States has had against narcotics cartels shows that this will not be easy.

The shifting politics

The idea of joining a year’s worth of military assistance to Ukraine and Israel to more money for border security and migration arose in late 2023 after it became clear Ukraine would need more help against Russia’s invasion, Israel would need help after Hamas’s October 7 attack, and increasing numbers of migrants were continuing to arrive at the US southwest border after the end of the pandemic. Under the Biden-McCarthy budget deal, the only way to get additional funds was through an emergency supplemental appropriation.

In late November, Republicans said they would require immigration policy changes as a condition for passing additional military assistance to Ukraine. Over the next ten weeks, a group of Senate Republicans and Democrats, with participation from Mayorkas and White House officials, worked on what became the bipartisan compromise announced February 4. The secrecy of the talks had many stakeholders worried their core interests and values were at risk. In hindsight, it appears that the secrecy was what made compromises on several key points possible.

However, in mid-January, with the release of the bipartisan Senate compromise imminent and following a White House meeting with congressional leadership on the overall package, the table was overturned when former president and likely Republican presidential nominee Donald Trump said social media “I do not think we should do a Border Deal, at all, unless we get EVERYTHING needed to shut down the INVASION of Millions & Millions of people, many from parts unknown, into our once great, but soon to be great again, Country!”

This provoked a reaction from the former president’s supporters, leading Speaker of the House Mike Johnson to call the deal “dead on arrival” even before details had been released. Senate Republican leader Mitch McConnell, after initially supporting the bill when its text was rolled out on February 4, said on February 5 that Republicans should vote against a procedural vote scheduled for February 7. Biden addressed the nation on February 6, calling for public support for the bipartisan Senate compromise. A key procedural vote in the Senate to move the bill forward, which needed 60 votes, failed 49-50. On February 11, the Senate voted 67-27 to move forward with the Ukraine, Israel, Indo-Pacific, and humanitarian packages—everything except border security and immigration.

The debate on the Senate compromise was significantly affected by misinformation (and disinformation) about the bill’s provisions. Most notably, the bill’s number of five thousand inadmissible migrants who would trigger the border being “closed” to asylum seekers was twisted into the idea that five thousand inadmissible migrants would be allowed into the United States. (See above for the details of how this would really have worked.) The reality was that those five thousand migrants would be subjected to the full panoply of security checks and legal requirements for asylum, so that only the small number actually eligible for asylum would actually be allowed to stay in the United States. This provision started, ironically, from a Republican demand that the Biden administration “close the border” whenever there were large numbers of migrants trying to cross without authorization, and the five-thousand figure was a compromise that Democrats could accept in order to write the authority into law. (Democrats were no doubt aware that a future Republican administration would almost certainly use this authority.) Biden said on January 24 he would use this authority. Republicans claimed he did not need additional authority, but the Republican interpretation would be open to judicial challenges, whereas Section 244B(f) of the bipartisan compromise would have significantly narrowed the courts’ ability to overturn such a determination. This kind of attention to detail was largely lost in the claims by the compromise’s opponents.

Make no mistake: A year of not having additional resources to deal with the current numbers of arriving migrants will further severely strain the nation’s immigration system. Officials in cities like New York and Denver are saying they are at a breaking point. ICE is talking about having to release detainees to cover a $700 million shortfall. CBP will have to pull money away from increasing processing capacity for cargo and arriving lawful travelers—increasing delays and holding back the US economy. Taking away funds needed by FEMA for disaster relief will directly hurt the millions of US citizens who suffer from natural disasters and have nowhere else to turn. Strains on CBP and ICE personnel will likely increase turnover as many leave for other, less stressful law-enforcement positions. While Trump said he will run on his vision for border security, Biden said on February 6 that Democrats will ask voters to hold Trump and Republicans responsible for blocking the Senate compromise.

The prospects for either side getting a better deal after the November 2024 election are limited. If Biden is reelected, expectations are that he will still face a closely divided Congress, and the problems with the border and immigration system will likely have grown worse with congressional inaction during 2024.

If Trump is elected, his December 2023 vow to be a “dictator” on “day one” and close the US border should be taken seriously. Doing this through executive authority alone would lead to immediate court challenges, because the right to claim asylum is written into federal statutes. Even if Trump then demanded that DHS and Justice Department officials defy federal court orders and promised those officials pardons if they carried out his instructions, my assessment is that few federal officials outside of Trump’s immediate orbit would do it. They likely would not want to jeopardize their post-Trump careers by defying federal court injunctions to enforce existing laws that allow asylum applicants to remain in the United States until their claims are heard by an immigration judge. Courts and Democrats are likely to slow down some of Trump’s most ambitious plans. Democrats will point to the 2024 bipartisan Senate compromise as the best offer a Trump administration may get if it needs Democratic votes to pass a budget or statutory changes.

It is always possible that whoever wins in November 2024 will overreach in 2025 on immigration policy and a one-party approach in 2025 will go nowhere. It is also possible that the outcome of the failure of the bipartisan Senate proposal in 2024, plus a year of inaction, may convince a supermajority in the Congress that a bipartisan approach is essential, desirable, and unavoidable.

Thus, the details of the bipartisan Senate compromise could well become the starting point for talks in 2025.

Recommendations

1. Two core ideas of the bipartisan compromise should be maintained:
   1. Resource decisions and policy decisions on border security and immigration need to be linked—advancing one without the other will not work.
   2. In the absence of truly comprehensive immigration reform, increased funding for the back-office functions to process asylum and other immigration cases within weeks, not years, is essential. This will provide both Republicans and Democrats with important parts of what they want: an end to “catch and release” and an immigration system that is just, fair, and reflects US values.
2. The Biden administration should adjust its budget numbers for Fiscal Years (FY) 2025 and 2026 to include ramping up the hiring of additional officers, agents, judges, and support personnel needed to implement something like the bipartisan Senate compromise with the goal that something like the 2024 bipartisan compromise can be enacted sometime in late FY 2025. These additional personnel are needed to address the current backlog and numbers of arriving migrants, even if the policy changes could not be made. Hiring and training more people will take time to implement—and should be ramped up as soon as possible.
3. For future federal budget negotiations, the Biden administration should make funding for the Department of Homeland Security part of the “revised security category” that currently includes only military spending (budget account 050). This may sound technical, but it would have fundamental, far-reaching consequences to strengthen US security. Future negotiations between a Democratic White House and a Republican-led house of Congress (whether the House or Senate) are likely to involve tradeoffs between security spending and domestic spending. This was the essence of the negotiations during the past decade, including the Fiscal Responsibility Act of 2023. However, the 2023 budget deal ended up pitting more funding for homeland security against other domestic spending priorities. Instead, both Democrats and Republicans would benefit politically from thinking of border security and immigration as integral to the security of the United States, so no one thinks of DHS as a “non-security” program during federal budget negotiations.
4. The Department of Homeland Security and the homeland security enterprise need to think of their mission as: “We lead the defense of the nation against non-military threats.” To the greatest extent possible, both DHS and the homeland security enterprise need to become more nonpartisan and “above politics.” This was a core recommendation of the Atlantic Council’s Future of DHS report in September 2020. It remains valid today.
5. As a long-term goal, DHS and the homeland security enterprise will be better off separating from the most partisan, toxic aspects of immigration policy. At one time, monetary policy was one of the most divisive issues in US politics. Most college students who take US history courses hear of William Jennings Bryan’s famous 1896 “cross of gold” speech, with few understanding the parallels between the divisiveness of monetary policy then and immigration policy today. It took the Federal Reserve Act of 1913 to take the bulk of monetary policy out of the hands of Congress and the White House. Congress set broad goals—currency stability and full employment—and then let the Federal Reserve Board decide how to balance both goals. Over the past century, admittedly with some dramatic ups and downs, the US economy has led the United States to a level of prosperity and security without precedent in human history. Something comparable for US immigration policy could help drive both security and prosperity for the next century.

About the author

Image: Layers of concertina wire are added to existing barrier infrastructure along the US-Mexico border near Nogales, Arizona, on February 4, 2019. Photo by Robert Bushell, US Customs and Border Patrol Flickr.