Here's what’s in the Senate’s border security deal

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Senate negotiators on Sunday evening released a long-awaited bipartisan deal to address what they called the “security crisis” at the southern border and to stem the surge of as many as 10,000 migrants a day from countries all over the world.

The ambitious set of reforms included in the deal is designed to give Customs and Border Patrol agents “operational control” of the border by speeding up the adjudication of asylum claims and giving President Biden and future presidents authority to shut down the border if daily crossing average more than 4,000.

The proposal would clamp down on the humanitarian parole of migrants into the country, which critics call “catch and release” and would raise the standard for asylum screenings.

It also includes provisions to address the flow of fentanyl into the country and to give a path to legal status for Afghan nationals who helped the United States during its 20-plus year war against al Qaeda and the Taliban.

Here’s what’s in the deal:

New power to close the border

The legislation would give the federal government new temporary authority to expel migrants when the average number of daily crossings exceed various thresholds.

If the daily average of migrant encounters reaches 4,000, the Department of Homeland Security would have the power to close the border to all migrants who don’t have appointments to seek asylum.

If the daily average of crossings reaches 5,000, the Homeland Security Department would be required to close the border to all migrants without appointments. This would also apply if crossings exceed 8,500 on a single day. The border would remain closed until Homeland Security regains the ability to process all of the migrants encountered and operational control is reestablished.

The daily number of encounters triggering the new expulsion authority would be calculated on the rolling average over seven days.

Migrants who attempt to cross the border two times or more while it’s closed will be banned from entering the United States for a year.

The enhanced border emergency authority would not apply to unaccompanied children, or migrants experiencing medical emergencies or an imminent threat to their lives.

End “catch and release”

The deal would close loopholes in the humanitarian parole of migrants, which critics call a policy of “catch and release.” 

Specifically, it would require the detention or supervision of all migrants processed at the border. It would stop the use of parole to enter the country at or between points of entry.

While the president’s parole authority would be narrowed, he or she would retain the power to parole entire classes of migrants and would have greater authority to do so at airports.

The parole reform would not eliminate the paroled status of migrants who have emigrated through special programs for Ukraine and Cuba.

Eliminate immigration court backlog

The proposal would shift the adjudication of asylum claims from the immigration courts to specialized U.S. Citizenship and Immigration Services (USCIS) asylum officers and seek to have those claims assessed within six months. It would allow for the decisions of those asylum officers to be appealed and would prohibit law enforcement officers from conducting asylum screenings.

The proposal would codify the right to counsel for all asylum seekers in the expedited removal process.

A major criticism of the nation’s asylum process is that migrants encountered at the border are routinely given court dates years in the future and rarely show up for them, instead melting into the U.S. population.

The emergency defense spending package, which includes the border security package, would provide $3.99 billion to USCIS for personnel, facilities and new operational requirements. It would help hire 4,338 asylum officers.

Raise the asylum standard and streamline the screening process

The proposal seeks to ensure that only migrants with legitimate asylum claims are allowed to stay in the country, and would consolidate the multiple initial screenings that migrants now go through into a single interview.

It would raise the initial screening standard for an asylum claim by requiring an applicant have a “reasonable possibility” of being persecuted or tortured in their home country. But it would not change the standard for proving a protection claim.

Asylum officers could approve clear and convincing asylum claims in the initial screening conducted to determine whether a claimant has a credible fear of persecution.

Work authorizations for migrants

Migrants whose asylum claims receive positive determinations under the expedited asylum process would immediately receive work permits. And family members of certain visa holders would also get work permits.

Migrants would also receive work permits if the screening process is delayed by administrative issues for 90 days after they enter the country. This would ensure that people whose asylum claims are delayed can take care of themselves and their families.

Under the proposal, an additional 250,000 new family and work visas would be distributed over the next five years.

New hiring authority for Department of Homeland Security

Homeland Security Secretary Alejandro Mayorkas and his deputies would be given authority to hire personnel more efficiently to secure the border, speed up asylum processing and ensure that rapid protection determinations are made within three months.

The legislation would provide $6.8 billion for Customs and Border Protection, $7.6 billion for Immigration and Customs Enforcement and $3.99 billion for Citizenship and Immigration Services.

Address the fentanyl crisis

The package would include the FEND Off Fentanyl Act, which Speaker Mike Johnson (R-La.) and House Republicans blocked from being added to the National Defense Authorization Act.

The proposal sponsored by Sen. Tim Scott (R-S.C.) and co-sponsored by Sen. Sherrod Brown (D-Ohio) would require the president to sanction transnational criminal organizations engaged in fentanyl trafficking.

Increased resources for cities absorbing migrants

The deal would provide $1.4 billion in aid to organization providing resources to migrants. It would help city governments and non-profit groups to provide essential services to keep migrant families winding up on the streets.

Legal status for Afghan allies

The deal would provide a pathway to permanent legal status for Afghan nationals who served as interpreters and in other support roles for U.S. troops during the two-decade war.

Updated at 8:57 p.m.

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