On April 17, 2023, Rep. Tom McClintock (R-California) — chair of the House Judiciary Committee’s Subcommittee on Immigration Integrity, Security, and Enforcement — introduced H.R. 2640, the Border Security and Enforcement Act of 2023. This legislative proposal represents an enforcement-focused approach to addressing large-scale humanitarian migration at the United States-Mexico border, as well as unauthorized immigration more generally. It would enact significant changes to the U.S.’s immigration laws, in part by curtailing existing legal pathways and imposing new criminal penalties.
In practice, the bill would likely make it more difficult for asylum seekers to access protection in the U.S., even if they would qualify under current law. It could also put vulnerable individuals and families at further risk of violence and trauma by increasing U.S. reliance on immigration detention and programs modeled after President Donald Trump’s Migrant Protection Protocols (MPP), which required noncitizens to remain in Mexico during their U.S. immigration court adjudications.
The bill would limit safeguards for migrant children who are victims of abuse, neglect, abandonment, or other forms of harm, while also restricting the executive branch’s parole powers that recently allowed Ukrainians and Afghans fleeing national security emergencies to be expeditiously admitted to the U.S. Further, the bill would make it a crime to overstay a visa, and it would require all U.S. employers to verify their workers’ immigration statuses.
The Border Security and Enforcement Act of 2023 was reported favorably out of the House Committee on the Judiciary after a near party-line vote on April 19, 2023. Rep. Thomas Massie (R-Kentucky) voted against the legislation in committee, noting that the bill’s nationwide E-Verify requirement would be a major federal imposition and could infringe on civil liberties.
There are five major themes and concerns around H.R. 2640. This analysis is not intended to function as a comprehensive overview of the 137-page bill, but it is meant to provide key takeaways on its most critical provisions.
1. The Border Security and Enforcement Act of 2023 would significantly limit asylum in the U.S.
H.R. 2640 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 were not 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 country of origin;
- 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, meaning they could likely remain in immigration detention for the duration of their asylum adjudication process, which in some cases can take multiple years;
- Expand the use of programs modeled after MPP, so that migrants were returned to Mexico or Canada pending their removal proceedings or reviews; and
- Make other changes to current asylum procedures.
These provisions would make it harder for individuals to request asylum despite them having 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 health and 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.
2. 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 state there is no presumption that a noncitizen child accompanied by family should not be detained in immigration detention facilities, making it easier for families with minor children to be held in detention indefinitely;
- Require the Department of Homeland Security (DHS) to detain parents and their children who entered together without authorization, if the parent is charged with a misdemeanor for improper entry;
- Establish the sense of Congress that these amendments satisfy the Flores Settlement Agreement requirements;
- Disallow states from requiring that immigration detention facilities detaining children or families receive state licensing, even if the state law requires this certification;
- Require the return of all unaccompanied migrant children — not just kids from Mexico and Canada — to their countries of origin if they are not trafficking victims and do not fear going home;
- 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. These initial screenings would in turn happen 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 no more than 72 hours to no more than 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 ill-equipped border facilities that were not developed for detaining kids;
- 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 of their parents.
In practice, these provisions could 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 another family separation incident like the one under the Trump administration’s 2018 Zero Tolerance policy, it would also expose children as young as infants to prolonged detention, with potentially serious physical and mental health effects.
Expedited processes and timelines for vulnerable kids to be screened and returned to their countries of origin could limit their access to counsel and meaningful adjudications, while mandatory removal proceedings against undocumented sponsors of migrant kids would likely discourage family members in the U.S. from coming forward to take in unaccompanied children – potentially increasing the number of migrant children in government shelters or placed with less familiar sponsors. Finally, by restricting eligibility for special immigrant juvenile status, H.R.2640 would curb a current legal humanitarian pathway to a green card for vulnerable migrant youth.
3. The bill would narrow the executive branch’s parole powers
Under current law, the Homeland Security 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.2640 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.; and
- 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.
4. The bill would criminalize overstaying a legal visa
H.R.2640 would establish criminal penalties for individuals who overstay a visa in the U.S. for more than ten 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. Under current law, overstaying a visa is a civil violation, and those who do so are subject to potential immigration consequences. But they do not face criminal penalties. H.R.2640 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.
5. The bill would require employers to verify immigration status nationwide
H.R.2640 would require employers in the U.S. 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 all 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 were confirmed as ineligible to work; and
- Increase criminal penalties for systemic hiring norms violations, including imprisoning violators for up to 18 months and fining them up to $5,000 for each unauthorized worker.
During the April 19 markup in the House Judiciary Committee, this portion of the bill raised bipartisan red flags around privacy and potential technological errors that could keep even eligible people from working. Verification requirements like these have also sparked alarm in critical sectors of the economy that are already dealing with 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.
The Border Security and Enforcement Act of 2023 takes an enforcement-only approach to immigration reform. It does not create any new legal immigration pathways to the U.S., and in fact it curbs existing humanitarian protections. If enacted, the bill would significantly alter current immigration law and jeopardize the U.S.’s tradition as a land of refuge, raising significant humanitarian and national security concerns.
Instead of pursuing this enforcement-only strategy, Congress should develop serious legislative proposals that adequately respond to challenges at the U.S.’s southern border and create processes that are efficient and well-managed. These solutions should provide fair and humane ways for asylum seekers to request protection in the U.S., while addressing significant operational issues and delays within our asylum system. They should also approach the situation at our southern border as one consequence of more general dysfunction within our immigration system, with an eye toward reform and improvement.