Rebuffed by the judiciary and lacking in executive-agency leadership, President Trump has seen illegal immigration and asylum claims at the border with Mexico reach critical levels. So his allies in Congress think it’s their turn to try to do something about it.
Following the resignation of Homeland Security Secretary Kirstjen Nielsen, senior Senate Republicans on committees with jurisdiction over the U.S.-Mexico border are laying the groundwork to rewrite immigration laws in hopes of discouraging Central American and Mexican migrants from illegally crossing the border into the United States or processing those who do make the journey.
“I understand the president’s frustration. The ball is squarely in Congress’s court to fix this,” said Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson on Tuesday. “There’s no executive action that’s going to fix the crisis on the border with unaccompanied children coming as family units. There’s laws that need to be changed.”
Apprehension of undocumented immigrants across the southwest border spiked in March, particularly among families and unaccompanied children at levels not seen since 2014, according to Customs and Border Protection.
Meanwhile, the exit of Nielsen, Acting Deputy Secretary Claire Grady, Secret Service Director Randolph Alles, and acting Immigration and Customs Enforcement Director Ron Vitiello, as well as CBP Commissioner Kevin McAleenan’s temporary exit to replace Nielsen, all create a vacuum of leadership in agencies overseeing the border.
“It is, in a word, chaos,” said Sen. Gary Peters, the top Democrat on the Homeland Security Committee, at its most recent hearing. “The problems we face at our southern border will not be fixed with high-profile firings or tweets or press conferences. It’s going to take leadership … cooperation, and credibility.”
All this comes amidst District Judge Richard Seeborg’s preliminary injunction against the Trump administration’s effort to keep asylum seekers in Mexico as they await adjudication, the latest rejection by a federal judge of the Trump administration’s efforts to prevent undocumented immigration.
"The asylum laws are very challenging when you're confronted with this onslaught of people," Senate Majority Leader Mitch McConnell told reporters Thursday. "It can't all be solved by changing personnel. Some of it requires changing the law."
Johnson said he plans to introduce legislation in the coming weeks aimed at tackling the crisis, including raising the standard of initial determination of asylum from its current "credible fear" to prevent further backlog of those seeking American protection.
The Wisconsin Republican in an interview last week stressed the need to “remove people that don’t have a valid asylum claim as quickly as possible.” He bemoaned “the sad reality” that under current law, CBP serves as nothing more than a “speed bump” for migrants looking to stay in the country long-term without applying for conventional residency.
“If we want to try and fix this short-term, we need to follow examples of what worked in the past,” Johnson said, citing the expedited removal of Brazilians in 2005 that discouraged illegal border crossings. “We know consequences work.”
Senate Judiciary Chairman Lindsey Graham has also repeatedly called for overriding the Flores settlement, which in its current interpretation forced law enforcement during the Trump and Obama administrations to choose between releasing families prematurely or separating minor migrants from their parents. He similarly wants to amend the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which experts say prevents deportation of minors to countries other than Mexico or Canada.
“It doesn’t matter who he picks” to replace Nielsen, Graham said. “It’s not going to solve the problems at the border until you change the laws.”
Sens. Tom Cotton, David Perdue, and Josh Hawley this week also reintroduced their own Trump-approved proposal that focuses more on limiting legal immigration. The bill, called the Reforming American Immigration for a Strong Economy Act, would put a 50,000-count annual quota on refugees seeking permanent residency.
Senate Republicans, remembering widespread criticism last year of the Trump administration’s separation of children from their families and District Judge Dana Sabraw’s decision forbidding it, are loathe to return to that practice. Trump himself Tuesday said that following Nielsen’s exit, he is “not looking to” reinstate a family-separation policy.
A bipartisan group of senators, including Rob Portman, Richard Blumenthal, James Lankford, and Tom Carper also reintroduced legislation on Thursday requiring the Health and Human Services Department to better track and care for unaccompanied children crossing the border.
Congressional Republicans also see “catch-and-release” as an ineffective form of border security given the ease with which undocumented immigrants with pending asylum cases can simply miss their hearing date and stay in the country illegally.
Johnson said Tuesday that Democrats have privately expressed interest in tackling the overloaded asylum system, and Graham said last week he was “willing to give Democrats something” to address loopholes in current asylum law or deportation to Central America.
But it’s unlikely that Republicans will find Democratic supporters necessary to pass either chamber. Democratic Sen. Jacky Rosen at a Homeland Security hearing Tuesday, speaking “as a granddaughter of Jewish immigrants from Eastern Europe,” compared efforts to curb asylum grants to the time Washington “used security concerns as an excuse to turn away thousands of refugees” in the 20th century.
“I got a real problem with it,” agreed Senate Minority Whip Dick Durbin. He said that while he “sympathize[s] with the volume issue,” he stressed that making it “extremely difficult” for refugees to enter the country wouldn’t be “consistent with American values.”
Democrats are open to other ideas. At a Homeland Security hearing last week on migration, Carper said holding asylum hearings at consulates abroad “makes some sense.” Others continue to pursue the elusive goal of comprehensive immigration reform.
“We have tried to deal with them on discrete legislation many times with no avail,” said Sen. Amy Klobuchar, a Minnesota Democrat running for president.