On May 4, 2023, a bipartisan group of lawmakers led by Sen. Kyrsten Sinema (I-Arizona) introduced S.1473 in anticipation of the Title 42 public health order’s expiration on May 11. The bill would legislate two years of mandatory detention and expulsion for almost all migrants and asylum seekers at the United States-Mexico border, with narrow exceptions.
Lawmakers have advocated for the proposal as a way to decouple the executive branch’s short-term expulsion authority under Title 42 from its initial justification, the Covid-19 public health emergency. Under the bill’s provisions, this new detain-and-expel enforcement mechanism would temporarily replace the Title 42 policy, which for over three years allowed officials to rapidly turn back migrants without even the opportunity to pursue asylum.
Yet S.1473 would be even more restrictive than Title 42 — including by potentially enabling the expulsion of unaccompanied migrant children (UAC) to Mexico, even if that is not their home country. The proposed legislation would also almost categorically deny people the right to seek asylum, a departure from existing federal law and longstanding U.S. obligations under international law.
This analysis is based on a released draft of the bill text that appears to include drafting errors. Even so, the overarching framework proposed in S.1473 remains clear: it would effectively close the U.S.-Mexico border to unauthorized migrants and asylum seekers for two years, with far fewer humanitarian exceptions than those maintained by the Biden administration when Title 42 was in place.
On May 11, 2023, a bipartisan group in the U.S. House of Representatives led by Rep. Jared Golden (D-Maine) introduced a companion bill, H.R. 3234.
Summary
In particular, S.1473 would:
- require that noncitizens at the U.S.-Mexico border be detained and expelled without any further hearing or review if they are inadmissible to the U.S. because they have either misrepresented themselves or do not have the necessary documents to enter the country;
- generally expel noncitizens to Mexico, despite the absence of a bilateral agreement with the Mexican government to do so;
- in instances where the Mexican government refused to accept a noncitizen or where the secretary of the U.S. Department of Homeland Security (DHS) decided that expulsion to Mexico would not be in the U.S.’s interest, expel a noncitizen to their country of origin or birth, a nation where they have a residence, or — barring those options — any other country willing to accept them;
- create a narrow exception only for noncitizens who could prove that their “life or freedom would be threatened” — based on the same five protected categories as asylum — if they were expelled to a certain country, or who could show that there are “substantial grounds for believing” they “would be in danger of being subjected to torture.” In addition, certain individuals would be disqualified from accessing these exceptions based on national security or criminal grounds;
- establish a process by which eligibility for these limited exceptions could be adjudicated by an asylum officer, who would decide whether the noncitizen was credible and had sustained his or her burden of proof. Given the context, few would likely be able to gather and present evidence to meet such a high bar before being expelled;
- require port directors at land ports of entry on the U.S.-Mexico border — alongside the commissioner of U.S. Customs and Border Protection (CBP) — to determine how many noncitizens could be safely processed daily through ports of entry and placed with NGOs for shelter and other services; and
- give immigration officers the ability to prevent a noncitizen’s expulsion on a case-by-case basis and after approval from the CBP Commissioner, because of circumstances such as “significant law enforcement officer, public safety, humanitarian, and public health interests.”
An additional section of the draft bill that seemingly contains errors appears to task port directors with devising a strategy to identify individuals who should be allowed into the U.S., with priority given to those who have a disability or an acute medical condition, as well as those who need advanced medical care that they can’t access where they are. Ambiguities around this section may be clarified once updated text is released.
Discussion
S.1473 would effectively sideline the existing statutory framework for border enforcement with a much more limited one for two years, with implementation immediately upon the bill’s enactment. While the Biden and Trump administrations used executive authority to curtail asylum under Title 42, formalizing these restrictions in statute threatens to lead to a longer-lasting change that could eventually be made permanent.
S.1473 would further undermine the U.S.’s commitment to refuge by significantly curbing access to existing legal rights for migrants and asylum seekers. Even the limited exceptions it prescribes would vet asylum seekers for concerns in their country of expulsion, which would likely be different from their country of origin, possibly with unfamiliar threats.
The bill could also expel people — potentially even toddlers unaccompanied by a parent or legal guardian — to dangerous situations in Mexico or elsewhere. Since early 2021, there have been more than 13,000 reports of migrants and asylum seekers being murdered, tortured, kidnapped, raped, or otherwise violently attacked after they were blocked from crossing into the U.S. or expelled back to Mexico because of the Title 42 policy. This plan would further expose vulnerable demographics to such harms.
While the bill would impose all-but-insurmountable restrictions on migrants and asylum seekers in the name of short-term order, it would fail to address the dominant factor leading to challenges at the southern border today: our broken immigration system. During the years that the Title 42 public health order was in place, the U.S. saw record numbers of migrant encounters, as such rapid expulsions without immigration consequences or penalties created a perverse incentive for repeat crossings. The dysfunction and high levels of border encounters experienced while Title 42 was in effect are no more likely to vanish if S.1473 is enacted. Amid a hemispheric displacement crisis, many desperate people unable to survive at home will likely continue to make the difficult decision to migrate regardless of whatever enforcement-focused policies the U.S. decides to impose. Realistically, the proposal does not represent a long-term solution for challenges at the U.S.-Mexico border, and it would likely cause confusion and disorder on the ground.
Notably, a previous effort by S.1473’s two main sponsors – Sens. Sinema and Thom Tillis (R-North Carolina) – envisioned a more holistic approach to border security and immigration reform and marked a promising starting point to tackle migration-related challenges in a broad and effective manner. By contrast, S.1473 falls short of addressing underlying issues with the U.S.’s immigration laws, and ultimately, the bill would simply expose migrants to harm.
Author: Alexandra Villarreal & Dan Kosten