White House open to new border expulsion law, mandatory detention and increased deportations in talks with Congress

Washington — The Biden administration on Tuesday indicated to congressional lawmakers that it would be willing to support a new border authority to expel migrants without asylum screenings, as well as a dramatic expansion of immigration detention and deportations, to convince Republicans to back aid to Ukraine, four people familiar with the matter told CBS News.

The White House informed Senate Democrats that it could back those sweeping and hardline immigration policy changes as part of the negotiations over President Biden's emergency funding request, a roughly $100 billion package that includes military aid to Israel, Taiwan and Ukraine, as well as money to bolster border enforcement and hire additional immigration officials. 

For weeks, a small group of senators have been attempting to reach an immigration enforcement deal. Republicans have conditioned any further assistance to Ukraine to policy changes designed to reduce the unprecedented levels of illegal crossings along the southern border. 

During a press conference at the White House on Tuesday, Mr. Biden said his team is "working with Senate Democrats and Republicans to try to find a bipartisan compromise, both in terms of changes in policy and [to] provide the resources we need to secure the border." He said he has "offered compromise already," adding that "holding Ukraine funding hostage in an attempt to force through an extreme Republican partisan agenda on the border is not how it works — we need real solutions."

The immigration talks

In recent days, Mr. Biden's administration has intensified its engagement with lawmakers. Homeland Security Secretary Alejandro Mayorkas started engaging with negotiators in the Senate this week, three people with knowledge of his engagement told CBS News. 

Mayorkas was on Capitol Hill on Tuesday afternoon as lawmakers continued talks aimed at reaching a deal before Congress adjourns for the holidays. A senior Department of Homeland Security official said Mayorkas and other DHS officials are providing "technical assistance" to lawmakers and their staff, not negotiating policy proposals.

Specifically, the White House indicated that it would support a new, far-reaching legal authority to allow U.S. border officials to summarily expel migrants without processing their asylum claims. The measure would effectively revive the Trump-era Title 42 pandemic order and allow officials to pause U.S. asylum law, without a public health justification.

The administration would also back a nationwide expansion of a process known as expedited removal that allows immigration officials to deport migrants without court hearings if they don't ask for asylum or if they fail their initial asylum interviews. The program is currently limited to the border region.

Moreover, the White House would be willing to mandate the detention of certain migrants who are allowed into the country pending the adjudication of their claims. It's unclear how this provision would work since the U.S. government has never had the detention space to detain all migrants who cross into the country illegally.  

Administration officials and some Senate Democrats have also previously indicated a willingness to raise the initial screening standard for so-called credible fear interviews that migrants have to pass to avoid being deported under expedited removal.

In a statement, White House spokesperson Angelo Fernández Hernández said the administration did not have "determined policy positions" in the congressional negotiations.

"The White House has not signed off on any particular policy proposals or final agreements, and reporting that ascribes determined policy positions to the White House is inaccurate," Fernández Hernández said. "The President has said he is open to compromise and we look forward to continued conversations with Senate negotiators as we work toward a bipartisan package." 

A delicate balancing act

The Biden administration's willingness to entertain broad, restrictive changes to U.S. asylum and immigration laws, including measures resembling Trump-era policies, may increase the likelihood of Republicans supporting its foreign aid package. But even if a bipartisan deal is forged in the Senate, it's unclear if the resulting legislation would win approval in the House.

House Republicans earlier this year passed a bill known as H.R. 2 that included much stricter asylum and border provisions, including the reinstatement of migrant family detention and the so-called "Remain in Mexico" policy. It also included drastic limits on the humanitarian parole authority, which the Biden administration has used to welcome hundreds of thousands of refugees and migrants from Afghanistan, certain Latin American countries, Haiti and Ukraine.

The administration's openness to negotiate restrictive immigration changes with Republicans has angered migrant advocates, progressive Democrats and Latino lawmakers, who have urged the White House and Senate Democrats to refrain from agreeing to permanent asylum restrictions.

"Destroying the asylum system will not fix the southern border," Democratic Rep. Pramila Jayapal said Tuesday. "We did not spend years fighting this agenda under Trump only to give in to Senate Republicans' extreme demands now."

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.

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