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Bill Analysis: The Secure and Protect Act of 2023

The Secure and Protect Act of 2023 (S.425)  would make significant changes to the asylum process, including directing residents of the Northern Triangle and other countries in the region to apply for protection at refugee processing centers outside of the United States. The bill would remove limits on the length of time children can be held in family detention, while modifying the Trafficking Victims Protection Reauthorization Act to permit the immediate repatriation of unaccompanied children (UACs) from countries other than Canada and Mexico (where these swift returns already take place). It also limits the ability of the executive branch to use humanitarian parole and tries to mitigate the immigration court backlog by providing additional funding for at least 500 new immigration judges, plus agency attorneys and support staff.

The bill was introduced by Sen. Lindsey Graham (R – South Carolina) on February 14, 2023.

Specifically, the Secure and Protect Act of 2023 would have consequences in a number of key policy areas.

Changes to the asylum process

The bill would:

  • Limit eligibility to claim asylum only to those individuals who entered the U.S. at designated ports of entry.
  • Change the definition of “credible fear” to require that asylum seekers meet a higher initial standard of proof, showing they are “more likely than not” to establish eligibility for asylum.
  • Create at least four refugee application and processing centers across Mexico and Central America, requiring asylum seekers from these as well as their neighboring countries to apply for protection at the centers without entering the U.S.
  • Charge a fee for applications at the refugee processing centers.
  • Make refugee officers responsible for adjudicating cases submitted at the processing centers.
  • Broaden the grounds for asylum ineligibility to include any felonies and prior removals.

Impacts on migrant families

The bill would:

  • Detain migrant children with their parents or guardians “pending the completion of removal proceedings,” instead of for the current standard of no more than 20 days established by the settlement agreement in Flores v. Reno (a class action lawsuit that challenged the federal government’s treatment, detention, and release of immigrant kids).
  • Make any obligations and restrictions based on the Flores settlement agreement no longer applicable.
  • Prioritize removal proceedings of migrant children and families, setting a 100-day completion goal for such cases.
  • Prohibit states from requiring that immigration detention centers for families be licensed by the state.
  • Give the Secretary of Homeland Security sole discretion to determine detention conditions for migrant children who are with their parents or guardians, with some baseline requirements at family residential facilities.

Impacts on unaccompanied children

The bill would:

  • Allow for the expedited repatriation of unaccompanied migrant children (UAC). Current law only subjects children from contiguous countries – Mexico and Canada – to these quick returns.
  • Require UACs to meet a high standard of proof to advance in the process for humanitarian relief, showing they are “more likely than not” to be trafficked, persecuted, or tortured in their home countries.
  • Require UACs to stay in government custody during their immigration proceedings, with some exceptions for those with sponsors or access to programs for unaccompanied kids.
  • Delegate responsibility for interviews around UACs’ trafficking, asylum, and other humanitarian claims to immigration officers with specialized training in applicable law, interviews with children, and child trafficking.
  • Make the immigration officers’ decisions final and unreviewable.
  • Restrict eligibility for Special Immigrant Juvenile status only to those who cannot reunify with either parent.

Limits on the use of humanitarian parole

The bill would:

  • Limit the executive branch’s humanitarian parole power, including by barring grants “according to eligibility criteria describing an entire class of potential parole recipients.”
  • Narrowly define who qualifies by explicitly enumerating what situations would represent an urgent humanitarian reason or significant public benefit that warrants the use of parole.

Addressing the immigration court backlog

The bill would:

  • Direct the Attorney General to increase the total number of immigration judges by at least 500 and similarly boost support staff to address immigration court backlogs.
  • Grow U.S. Immigration and Customs Enforcement’s staff, including attorneys, by a number that reflects the increase in immigration judges.

Author: Alexandra Villarreal

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