Washington, DC – The deal was all but dead on arrival.
Less than a day after leaders in the United States Senate unveiled a bipartisan immigration deal, members of the Republican Party had organised against it, dooming its passage this week.
But even as the bill was blocked in an initial vote on Wednesday, migrant rights advocates and policy experts say it still underscores a rightward lurch on immigration under the administration of President Joe Biden.
They warn the legislation — which includes some of the tightest border restrictions Congress has weighed in decades — could be a sign of things to come, as immigration becomes a focal point of the 2024 elections.
“What this shows us is that the administration and Democrats seem to be willing to let right-wing Republicans control the narrative,” Sunil Varghese, the policy director at the International Refugee Assistance Project (IRAP), told Al Jazeera.
The bill stumbled during Wednesday’s initial procedural vote: With 50 Senators voting “no”, it failed to clear the threshold for chamber to start work on it.
For its part, the Biden administration had framed the deal as its best shot at addressing the record number of migrants and asylum seekers crossing the US’s southern border irregularly.
Biden and other top Democrats also touted the bill as a compromise that would allow for foreign aid to Ukraine and Israel, in exchange for immigration restrictions. They called the deal a rare opportunity to increase funding for both border security and asylum processing, an area that has traditionally been under-resourced.
“Will Republicans take ‘yes’ for an answer and seize the best opportunity — the best opportunity — that Congress has seen in decades to secure our border? This is the choice Republicans face today,” Senate Majority Leader Chuck Schumer said in a congressional speech on Wednesday.
But Varghese said the deal shows that, amid the heightened political pressure of an election year, Biden and some leading Democrats are embracing more Republican-leaning policies. He considers the bill as a departure from the promises Biden made in 2020, when he was elected president.
“I think what the Democrats did in 2020, what the Biden campaign did in 2020, was to put forward an independent, separate vision of what they thought America was and what they thought America could be,” he added. “And they’ve moved very far away from that.”
‘Ceded a lot of ground’
The new bill signalled that “Democrats have really ceded a lot of ground to the Republican position”, according to Rebekah Wolf, a senior advocacy strategist at the American Immigration Council.
She described that position as the view “that immigration policy, as a whole, lives and dies at the border — and that the only appropriate border policy is a policy that tries to get as few people to come into the United States as possible, regardless of why they’re coming”.
By contrast, Wolf said that Democrats focused more on a “real understanding of the humanitarian aspect” during the 2020 election.
Each year, hundreds of thousands of individuals arrive at the border to request asylum, an internationally recognised right to seek safety abroad from persecution. As of August, the US government had a backlog of at least 974,571 (PDF) asylum applications requiring a final review.
As a candidate in the 2020 race, Biden positioned himself as a champion of asylum — someone who would mark a clean break from the heavy-handed immigration policies of then-President Donald Trump.
Upon receiving his party’s nomination, Biden pledged to “immediately end Trump’s assault on the dignity of immigrant communities”. Instead, the Democrat said he would take a more humane approach, particularly to asylum seekers.
“We’re going to restore our moral standing in the world and our historic role as a safe haven for refugees and asylum seekers,” he said.
Upon taking office in 2021, the Biden administration set about rolling back some of Trump’s most controversial policies.
One was the so-called Migrant Protection Protocols, also known as the “Remain in Mexico” policy, which often required asylum seekers to wait in camps south of the border as their cases were adjudicated. Biden also targeted Title 42, a public health measure implemented during the COVID pandemic that allowed individuals crossing the border to be expelled before they could apply for asylum.
But as the number of border crossings ticked upward, the Biden administration shifted to a series of “carrot and stick” measures: He expanded some legal pathways to enter the country, while allowing for the immediate expulsion of many who cross the border outside of official points of entry.
Rights groups have said the policy nevertheless erodes the US’s legal responsibility towards asylum seekers.
Shutting down the border
But the bipartisan deal Biden helped negotiate would have taken an even harder line against asylum rights, advocates say.
On January 27, Biden told reporters he would “shut down the border right now and fix it quickly” if the current bill were passed. He doubled down on that claim during a speech on Tuesday.
“This bill would also give me, as President, the emergency authority to temporarily shut down the border when it becomes overwhelmed,” Biden said. “If the bill were law today, it would qualify to be shut down right now while we repair it.”
Critics have drawn parallels between those statements and similar claims made under Trump, who sought to use his executive authority to stopper the border.
“If Mexico doesn’t immediately stop ALL illegal immigration coming into the United States through our Southern Border, I will be CLOSING the Border, or large sections of the Border, next week,” Trump, for example, posted on social media in 2019.
Trump and Biden are expected to face one another again in the 2024 general election. Experts like Wolf expressed surprise that the two rivals have converged over the issue of immigration.
“I don’t think anyone six, nine, 12 months ago would have predicted that President Biden would come out and say that he was staking his credibility on supporting a proposal that would, quote, shut down the border,” Wolf said.
“Not just going back all the way to what Joe Biden had campaigned on, but even the positions that he was more recently taking in court cases challenging [Trump-era] policies.”
Provisions in the new immigration bill would have allowed the summary expulsion of asylum seekers, with some exceptions, at the southern border when border encounters average 4,000 per day over a week. Those expulsions would be mandatory if border crossings reach an average of 5,000 per day over a week, or 8,500 in one day.
In addition, the bill would have increased the White House’s authority to order expedited removals (PDF), allowing the Department of Homeland Security to swiftly deport undocumented people both at the border and within the country.
The deal would have also created a higher standard for evaluating “credible fear” interviews, the first step in the asylum process: During those interviews, asylum seekers have to establish that they fear persecution in their home country and therefore cannot return.
‘Poisoned with extreme anti-immigrant policies’
Several asylum advocacy groups have said the bill did include some positive measures, including proposals to speed up the notoriously sluggish process of adjudicating asylum claims.
It would have also increased employment and family visas by 50,000 a year over five years. And immigration rights groups have applauded a provision to grant permanent residency to tens of thousands of Afghans evacuated after the Taliban takeover of their country.
Krish O’Mara Vignarajah, president of Global Refuge, said the deal underscores the need for comprehensive border legislation. But, she added, it falls short of fulfilling the US’s “core values”.
“I think, just as a matter of values, most Americans believe that, when people are fleeing the most extreme of circumstances — religious and political persecution, torture — that when people reach American soil, we offer at least a right to seek relief and refuge,” she told Al Jazeera.
The Welcome With Dignity campaign, a coalition of immigration advocacy groups, said the erosion of asylum seekers’ rights makes the deal a non-starter in terms of meaningful reform.
“The bill is poisoned with extreme anti-immigrant policies that would essentially end access to asylum, a legal pathway for people fleeing persecution,” it said in a statement on Monday.
“An international aid bill is no place for immigration reform. It is unconscionable to use people seeking asylum as political pawns to gain support for the protection of others.”
Afghans for a Better Tomorrow, a group that advocates for Afghan refugees seeking permanent residency, also rejected the bill. “Afghans refuse to be used as political tools,” the group said.
Republicans slammed the bill as well, albeit for different reasons: They argued it does not go far enough to clamp down on immigration.
“I do not think we should do a border deal, at all, unless we get EVERYTHING needed to shut down the INVASION of Millions and Millions of people,” Trump wrote on social media in January.
‘New reality’
Though the deal floundered in its first test in the Senate on Wednesday, it nevertheless reflects “a new reality” for the Biden administration and a wider shift among Democrats on matters of immigration, according to Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute.
That is perhaps most evidenced, she said, in what the bill does not include: a new pathway to citizenship for undocumented people in the US. Such a provision has long been a Democratic demand during border negotiations.
“Democrats are saying that they are willing to agree to measures that, under the former President Trump’s administration, they vocally opposed,” Bush-Joseph said. “And they’re doing that without getting legalisation measures.”
The apparent shift within the Biden administration is the product of several factors, according to Mariano Sana, a professor of sociology at Vanderbilt University who studies public opinion and migration.
There have historically been rifts within both the Democratic and Republican parties on issues of migration. In the 1960s, for instance, pro-union Democrats supported restrictive immigration policies for fear that an influx of cheap labour could undermine US workers. Some pro-business Republicans, meanwhile, were in favour of more welcoming policies to help build the workforce.
Trump’s appearance on the political scene and his xenophobic rhetoric helped coalesce each party’s current platform, resulting in a more polarised landscape, Sana explained. Republicans have remained relatively unified in a “more and more restrictionist” approach, while the Democrats have strained to both restrict irregular immigration and uphold asylum policies.
When Biden first ran against Trump in 2020, he hewed closer to the progressive wing of his party, Sana pointed out. But as immigration became a political liability during his first term, Biden has moved towards stronger immigration restrictions.
“It really looks bad for the Democrats,” he said. “A recent survey showed immigration as a top concern for nearly 30 percent of voters, over the economy and jobs. That’s really unprecedented.”
“I can’t remember any time in the past when so many people said in any survey that they were more concerned about immigration than about the economy and jobs.”
Wolf at the American Immigration Council said the shift has been driven, in part, by pressure from some Democrat-dominated cities. Democratic mayors like Eric Adams of New York and Brandon Johnson of Chicago have pushed Biden to take urgent action, as migrants and asylum seekers are bussed from the border into their cities
“I think that you can’t overstate the influence of cities like Chicago and New York City: Democratic strongholds coming out and saying that they are being essentially being quote, unquote, overrun by newly arriving asylum seekers,” Wolf said.
“There seems to be a sense [from Democrats] that public opinion has changed … A political calculation that the American public is OK with embracing this attitude that we need to stop people from coming in.”
The new approach has put Biden on a collision course with progressives in his party, who have accused the president of failing to live up to his 2020 campaign promises.
“The Senate will try to sell this so-called deal by pointing to some additional green cards and fixes for small immigrant groups,” Pramila Jayapal, the chair of the House Progressive Caucus, said in a statement this week.
“However, let’s be clear: Minor visa tweaks in exchange for shutting down the asylum system and exacting further harm on the vulnerable people seeking refuge in the United States is not serious reform and it once again throws immigrants under the political bus.”
For his part, Biden on Tuesday said his administration will continue to pursue “true immigration reform” including a legal pathway to citizenship for people brought to the US as children.
Still, he called the new restrictions “essential” and accused Trump of using his influence to sabotage the deal.
“For years, [Republicans] said they want to secure the border. Now they have the strongest border bill this country has ever seen,” he said.
“Every day between now and November, the American people are gonna know that the only reason the border is not secure is Donald Trump.”
