Bill Analysis: The Secure the Border Act of 2023

On May 2, 2023, House Republicans introduced H.R.2, The Secure the Border Act of 2023. Sponsored by Rep. Mario Díaz-Balart (R-Florida), the expansive proposal represents an enforcement-only approach to migration-related challenges at the United States-Mexico border and beyond. It is a combination of three bills from the 118th Congress: The Border Security and Enforcement Act of 2023, the Orderly Requirements Designed to Enforce and Regulate Latin American Migration (ORDER) Act, and the Border Reinforcement Act of 2023.

In practice, the bill package would severely restrict the right to seek asylum in the U.S., curtail other existing lawful pathways, place unnecessary pressure on border communities, intensify labor shortages faced by small businesses and essential industries, establish new criminal penalties, and make other significant changes to U.S. immigration law.

This analysis details six major themes and concerns around H.R.2. While it is not intended to function as a comprehensive overview of the sweeping bill, it does underscore key takeaways.

1. The Secure the Border Act of 2023 would restart border wall construction and defund NGOs that provide services to migrants

The bill would increase funding for border barriers and enforcement personnel, while dismantling current practices that relieve pressure on U.S. border communities. In particular, it would:

Reestablish Trump-era border policy, including restarting construction on the border wall and requiring the Department of Homeland Security (DHS) to create a plan to meet benchmarks for 200 miles of construction each year;
Reinforce the unrealistically narrow definition of “operational control” as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”(emphasis added);
Require the DHS secretary to incorporate physical barriers, infrastructures, and technologies to “achieve situational awareness and operational control” at the U.S.-Mexico border;
Increase the number of full-time Border Patrol agents to at least 22,000;
Prohibit the use of U.S. Customs and Border Protection Air and Marine Operations resources to transport noncitizens who will not be detained into the country’s interior;
Build on Operation Stonegarden to appropriate $110 million per fiscal year — from 2024 through 2028 — for grants to law enforcement agencies working with U.S. immigration authorities near the U.S.’s land and maritime borders;
Require the U.S. Border Patrol to pull together a strategic plan based in part on information provided by “border community stakeholders” such as hospitals, farmers, ranchers, property owners, victims of crimes done by undocumented immigrants, and others “negatively impacted by illegal immigration;”
Pull funding for processing noncitizens who have entered the U.S. between ports of entry;
Bar funds from being disbursed to NGOs that “facilitate[ ] or encourage[ ] unlawful activity,” defined to include unlawful entry, or that facilitate transportation, lodging, or immigration legal services for people who are inadmissible;
Restrict the use of documents provided by DHS, such as notices to appear and work authorizations, as valid IDs at airport security checkpoints;
Limit the CBP One phone application and other similar platforms to only be used for the inspection of perishable cargo, barring its use for the scheduling of immigration interviews for people at ports of entry;
Mandate government reporting on migration-related economic and security ramifications to states and municipalities along the U.S.-Mexico border, including to law enforcement, school districts, healthcare providers, and farmers and ranchers; and
Defund an alternatives to detention case management program and CBP’s shelter services program.

While some elements of the proposed legislation might prove effective and helpful, like additional investments in personnel and technology at ports of entry, the bill’s enforcement-only focus and failure to address lawful pathways is deeply flawed. The bill’s overarching focus on physical barriers and deterrence measures — but not increased numbers of asylum officers or immigration judges — presents a vision of the U.S.’s southern border where people fleeing violence and persecution would be quickly removed, without meaningful access to protection. Further, by interpreting “operational control” through the circumscribed definition in the Secure Fence Act of 2006, the bill is predicated on an unrealistic standard that the U.S. must prevent all unauthorized crossings along a roughly 2,000-mile border.

Meanwhile, H.R.2’s emphasis on keeping noncitizens detained — and defunding more humane approaches to case management for migrants and their families — could cause undue harm and trauma. A strategic plan for the Border Patrol predicated on information from those who have been “negatively impacted by illegal immigration” may have the adverse effect of demonizing migrants and asylum seekers, instead of promoting policies that recognize their human dignity. Provisions that limit migrants’ and asylum seekers’ ability to fly to their final destinations while they await their adjudications would make it harder for them to reach their friends and families, while also placing unnecessary pressure on border communities as longer-term hosts. And policies that would take away much-needed funding from NGOs for providing direct services to the world’s most vulnerable could further impede the U.S.’s ability to respond to the challenges we face on the ground at the border.

2. The bill would significantly limit asylum in the U.S.

H.R.2 would restrict both access to and eligibility for asylum. In particular, the bill would:

Raise the initial screening standard so that a noncitizen would have to prove they were “more likely than not” to ultimately qualify for asylum in order to continue pursuing their protection claim and not be quickly removed from the U.S.;
Ban the vast majority of asylum seekers from requesting protection at a U.S. border if they traveled through a third country en route to the U.S. and had not already been denied asylum there;
Generally restrict asylum claims to only those migrants who arrive in the U.S. at an official port of entry;
Add exclusions to asylum eligibility, including by enacting restrictions against those who unlawfully received a federal public benefit or could reasonably avoid persecution by relocating to a safer area within their home country;
Deny employment authorization if an asylum seeker entered or tried to enter the U.S. at a place other than a port of entry;
Impose a fee of not less than $50 to apply for asylum, which might make it harder to afford to make a protection claim;
Narrow who qualifies for asylum based on their political opinion or membership in a particular social group, in ways that would curtail protection claims by generally excluding cases related to interpersonal violence, gang-related activity, or crime;
Allow the DHS secretary to indefinitely suspend access to a land or maritime border for migrants who enter without admission or parole, misrepresent themselves to enter, or do not have valid documentation to enter, if doing so would help achieve “operational control;”
Require the DHS secretary to expand detention capacity, including by potentially reopening detention facilities that have been closed or whose use has been altered during the Biden administration;
Limit release from detention for asylum seekers with positive credible fear determinations, requiring immigration detention for the duration of their asylum adjudication process. With some cases taking multiple years, this provision would mean that some asylum seekers with credible claims could face lengthy periods of detention;
Expand the use of programs modeled after the Trump administration’s Migrant Protection Protocols (MPP), so that migrants are returned to Mexico or Canada pending their removal proceedings or reviews;
Require the U.S. to negotiate an international agreement where the Mexican government would accept the continued presence of non-Mexican asylum seekers during their adjudications for asylum in the U.S., like under MPP; and
Make other changes to current asylum procedures.

These provisions would make it harder for individuals to request asylum, even in cases where they can demonstrate a well-founded fear of persecution, effectively disqualifying people who would be able to receive protection under the U.S.’s current laws. Taken together, the bill’s restrictions would severely limit asylum for most migrants who traveled through Latin America to reach the U.S.-Mexico border. The new fee requirements could box out asylum seekers without the ability to pay for refuge, while mandatory detention or long-term waits abroad could make it more difficult for migrants to access legal counsel and ultimately win their cases.

Programs such as MPP would also represent a significant safety concern; well over a thousand migrants became victims of rape, murder, torture, kidnapping, and other attacks after the U.S. returned them to Mexican border towns under MPP.

3. The bill would roll back safeguards for migrant children

The Flores Settlement Agreement is the current standard that governs the conditions under which children can legally be held in U.S. immigration detention. This bill would undermine some of the agreement’s most fundamental stipulations, including restrictions on how long kids can be detained, while also limiting access to an existing legal pathway for migrant children. In particular, the bill would:

Explicitly end the existing presumption against detaining a noncitizen child accompanied by family, making it easier for families with minor children to be held in detention indefinitely;
Require DHS to reestablish family detention, requiring that parents and children who entered together without authorization be held in immigration detention if the parent is charged with a misdemeanor for improper entry;
State the sense of Congress that these amendments satisfy Flores Settlement Agreement requirements, which place strict limits on the detention of minor children;
Disallow states from setting licensing requirements for immigration detention facilities holding children or families, even if the state law requires this certification;
Amend the bipartisan William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to require the return of all unaccompanied migrant children — not just those from Mexico and Canada — to their countries of origin if they are not trafficking victims and do not express a fear of return;
Fast-track removal proceedings for unaccompanied migrant children who may qualify for humanitarian relief, so that hearings take place within 14 days of an initial screening. The initial screenings would occur within 48 hours of apprehension;
Extend the timeline to transfer unaccompanied migrant children to the custody of the Department of Health and Human Services (HHS) from 72 hours to 30 days for those with humanitarian claims, and make the transfer of other unaccompanied migrant kids to HHS discretionary, significantly extending the time that migrant children could be held in border facilities that are not equipped to care for minors;
Require HHS to provide DHS with identifying information about sponsors for unaccompanied children, including their social security numbers and immigration status, and then require DHS to place any unlawfully present sponsors in removal proceedings within 30 days; and
Change eligibility for special immigrant juvenile status (SIJ) to only apply to youth who could not reunite with both of their parents because of abuse, neglect, abandonment, or a similar basis, instead of the current standard of youth who cannot reunite with one or both parents.

In practice, these provisions would have significant consequences for children and families seeking safety in the U.S. Although requiring DHS to hold migrant kids and parents together would avoid Trump-era family separations like those resulting from the 2018 Zero Tolerance policy, practices promoting prolonged detention of children and families are likely to cause serious physical and mental health effects.

Expedited processes and timelines for vulnerable children to be screened and returned to their countries of origin would limit access to counsel and meaningful adjudications, potentially returning some minors to dangerous situations in their home countries. Additionally, the bill’s mandatory removal proceedings against undocumented sponsors of migrant kids are designed to deter family members in the U.S. from coming forward to take in unaccompanied children, increasing the number of migrant kids in government shelters or placed with less familiar sponsors. Finally, by restricting eligibility for SIJ, H.R.2 would curb a current legal humanitarian pathway to a green card for vulnerable migrant youth.

4. The bill would narrow the executive branch’s parole powers

Under current law, the DHS secretary has the discretion to grant parole to individuals on a case-by-case basis, because of urgent humanitarian reasons or significant public benefit. H.R.2 would limit that authority. In particular, the bill would:

Redefine what it means for parole to be granted on a “case-by-case basis,” so that such grants cannot be made categorically based on membership in a defined class of noncitizens, as the Biden administration did for nationals from Ukraine and Afghanistan;
Narrowly define “urgent humanitarian reason” to mostly encompass medical emergencies, the imminent death of a family member in the U.S., or the funeral of a family member;
Narrowly define “significant public benefit” to apply to a foreign national who is assisting the U.S. government in a law enforcement matter;
Carve out limited exceptions, including for certain Cuban nationals, some spouses and children of active-duty military members, and foreign nationals in Mexico or Canada who have pending immigration hearings in the U.S.;
Bar most parolees from legally working in the U.S.; and
Generally restrict parole timelines to the shorter of either one year or the required period to accomplish the stated activity for which parole was granted, with limited options to extend.

If enacted, these provisions would constrain the executive branch’s ability to expeditiously respond to national security and humanitarian events. Recently, parole has been used to efficiently admit Afghans, Ukrainians, Venezuelans, and Cubans fleeing violence and instability. It has also provided a vehicle for certain nationalities to come to the U.S. legally, relieving pressure at the U.S.-Mexico border by allowing for a more orderly pathway.

5. The bill would criminalize overstaying a legal visa

H.R.2 would establish criminal penalties for individuals who overstay a visa in the U.S. for ten or more days. In particular, it would:

Punish a first offense with no more than six months in prison and a fine of up to $1,000; and
Punish a subsequent offense with no more than two years in prison and a fine of up to $2,000.

A sizable proportion of the U.S.’s undocumented community entered the country legally and overstayed a visa. Under current law, overstaying a visa is a civil violation, and those who do so are subject to potential immigration consequences, but not criminal penalties. H.R.2 would change that, by making people who overstay visas subject to criminal charges similar to the ones imposed on those who enter the U.S. without authorization. Such a policy would have far-reaching consequences for a broad swathe of people — a tourist who remained in the U.S. for an extra few weeks, a future spouse awaiting his visa — who have little to do with the situation at the border.

6. The bill would mandate employers to electronically verify the immigration status of their workers

H.R.2 would mandate that U.S. employers use an electronic employment verification system to verify the employment status of their workforce. Under the bill, employers would be required to collect and retain verification that they are not hiring undocumented workers. In particular, the bill would:

Enact a nationwide requirement, for the first time, that employers verify the eligibility of workers to legally work in the U.S., creating an onerous system that would put pressure on small business employers and key industries;
Require employers to attest under penalty of perjury that they had verified a potential employee was not undocumented;
Make employers verify the employment eligibility of workers through a new Employment Eligibility Verification System (EEVS) that was established and administered by DHS;
Mandate employers to terminate employment for foreign nationals who are confirmed as ineligible to work; and
Increase criminal penalties for systemic hiring violations, including imprisoning violators for up to 18 months and fining them up to $5,000 for each unauthorized worker.

During an April 19 markup in the House Judiciary Committee of the Border Security and Enforcement Act of 2023 — one of the bills folded into this larger package — these provisions raised bipartisan red flags around privacy and potential technological errors that could keep even eligible people from working. Because these new verification requirements are not being coupled with legal workforce reforms that would ensure an adequately-sized pool of authorized workers, they threaten to spark alarm in critical sectors that are already facing labor shortages. For example, nearly half of U.S. agricultural workers are undocumented, and such stringent verification requirements could jeopardize Americans’ access to a reliable food supply.

Conclusion

The Secure the Border Act of 2023 would compromise the U.S.’s long-standing tradition of refuge, while restricting existing lawful pathways that bolster our nation’s humanitarian and national security priorities. It would not address what is driving the perception of disorder at the U.S.-Mexico border: our broken immigration system.

Amid a hemispheric displacement crisis that will continue to force migrants and asylum seekers from their homes, an enforcement-only approach like this one will not provide U.S. officials with the infrastructure and resources they need to adequately respond. Instead, Congress must work together on bipartisan reforms that pair smart border security with lawful and orderly pathways to the U.S., while also reinforcing our nation’s longstanding commitment as a safe haven for those fleeing persecution.

Author: Alexandra Villarreal