GOP border bill would gut pathways to asylum 

A Republican border and immigration bill set to come to the House floor Thursday would represent one of the biggest clawbacks of asylum rights in decades if enacted, experts warn. 

The GOP is aiming to pass the bill May 11 — the same day President Biden is set to lift Title 42. It’s a move that will restore some access to asylum rights for the first time since the start of the pandemic, even as the administration rolls out significant new limitations on who and how people seek such protections.  

But with the White House poised to restore limited pathways for people fleeing persecution and danger, the GOP bill would slice away at asylum rights and other options for migrants to remain in the U.S. 

Aaron Reichlin-Melnick, policy director at the American Immigration Council, said the bill would “effectively end the system of asylum that we’ve had for the last 43 years.”  

“It is harder to determine who could apply for asylum under this bill than who couldn’t,” he said. 

The bill is likely to face opposition in the Democratic-controlled Senate, and it is far from clear it could become law. But it shows just how far the House GOP wants to go in curbing any right to asylum in the name of border protection.

The bill contains a number of GOP priorities meant to reinforce border security, reinstating some policies from the Trump era.  

It requires the completion of former President Trump’s border wall and would add more than 20,000 new border agents. It also requires the government to detain all migrants, send them home, or return them to Mexico while they await immigration proceedings — a prospect the southern neighbor could refuse. 

U.S. Border Patrol agents pick up a ladder that migrants carried to the border wall near the port of entry in Hidalgo, Texas. A recent surge of migrants to the U.S.-Mexico border is highlighting immigration challenges as the U.S. prepares for the end of Title 42. (AP Photo/Veronica G. Cardenas, File)

The security measures are paired with provisions gutting asylum rights, in some cases borrowing word-for-word from a Trump-era asylum regulation struck down in court.  

Even the bar for the initial screening ahead of seeking asylum has been raised — would-be applicants must show they are more likely than not to be granted the status, rather than a “significant possibility” they could qualify — meaning fewer applicants would get a chance to make their case. 

Many may not even make it to the initial screening, as citizens from a number of countries are effectively blocked from seeking asylum.  

The bill requires those seeking asylum to first apply at any other country they pass through, allowing only those who receive denials to try the U.S. That language largely bars anyone who cannot directly come to a U.S. port of entry, essentially limiting asylum to Mexicans, Canadians, and those who already have hard-to-secure tourism visas who can hop a direct flight to the U.S. 

Reichlin-Melnick said anyone with a layover would be barred from seeking asylum, as would anyone south of Mexico traveling by car, if they don’t first seek and get denied asylum on the way. 

“Say [Russian opposition leader Alexei] Navalny is released from Russian prison today. And he gets on a flight and it stops in an airport in another country before getting here,” he said. “Well, he is not eligible for asylum after this bill because he didn’t apply for asylum in the country in which he stopped on the layover.”  

Migrants cross the Rio Bravo into the United States from Matamoros, Mexico, Tuesday, May 9, 2023. (AP Photo/Fernando Llano)

Those who do manage to make it to a port of entry and who do pass the initial screening would be met with another round of limitations placed on existing asylum protections. 

“They cut asylum up into little pieces and they put it in a box and they dropped it at the bottom of the ocean,” said Angela Kelley, a chief policy adviser at the American Immigration Lawyers Association. 

“It is an evisceration of the notion that we offer humanitarian protection to people who need it and who qualify.” 

Republicans have long argued the U.S. asylum system is too generous but also that the prospect alone serves as a magnet to those unlikely to qualify. The backlog of asylum claims in immigration court means cases take years to be heard, so even those whose applications are denied may spend years in the U.S. before their deportation is ordered. 

“The goal here is to not allow asylum to be used as a back door to the immigration system,” Rep. Chip Roy (R-Texas), who was involved in the crafting of the bill, told The Washington Post in April. 

The bill narrows protections for those fleeing from political persecution as well as those who are targeted as members of a “social group,” a category that can be used for those persecuted due to their sexuality. 

The legislation would grant asylum only to those whose political activity is a challenge to current state leadership rather than a cause in general, meaning that women in Saudi Arabia pushing for the expansion of women’s rights but uninterested in overthrowing the monarchy would not qualify.  

It also would deem someone eligible for asylum if they violate laws that are “unenforced or infrequently enforced” unless they can demonstrate that they could be personally impacted by it. 

Reichlin-Melnick said while that language appears to guard against an applicant seeking to use an obscure law to gain asylum protections, it’s written so broadly it could present hurdles for a number of groups. 

“What does it mean for a law to be frequently enforced? Well, what if you are a small ethnic minority? How can a law be frequently enforced against your group if there’s only a handful?” he asked.  

He also pointed to a recently passed law in Uganda that makes homosexuality illegal and calls for the death penalty in some cases. Under the bill, a Ugandan national would need to show “credible evidence that such a law or policy has been or would be applied to the applicant personally.” 

Migrants cross a barbed-wire barrier into the United States from Ciudad Juarez, Mexico, Tuesday, May 9, 2023. (AP Photo/Christian Chavez)

Another section of the bill also expands the number of crimes that disqualify someone from winning asylum, a list that already includes several violent offenses in accordance with international standards that bar those convicted of a particularly serious crime.  

The bill adds to that list anyone who uses false identification documents, something that would prohibit asylum to anyone who has used a fake driver’s license. 

The portions of the bill dealing with asylum were a major hang-up within the GOP. Rep. Tony Gonzales (R-Texas) called the original portions of the bill dealing with asylum “unchristian”
— publicly slamming Roy for them.  

Roy’s language — which would have allowed the Department of Homeland Security to turn away any migrant they deemed a public health threat until they achieve operational control of the border — has been stripped from the final bill. But the remaining text still greatly limits asylum. 

“This isn’t just a crackdown on asylum seekers. It really is a stain on the character of our country if this were to become law because it’s so extreme and so cruel and so unworkable,” Kelley said. 

“I’m trying to think if I’ve ever seen a piece of restrictionist legislation that has gone this far, and I don’t believe that I have.” 

When introducing the bill, House Majority Leader Steve Scalise (R-La.) called Republicans’ plan the “strongest border security package that Congress has ever taken up.” 

“We’re going to show the president how to solve the problem.”  

Updated 3:05 p.m.