The issue that could tank the Senate’s border talks

The senate’s high stakes negotiations over border policy appeared deadlocked Thursday, as Democrats and Republicans continued to butt heads over a legal tool the Biden administration has leaned on to aid in humanitarian escapes and manage the massive influx of migrants seeking asylum at the southern border.

Lawmakers are at odds over a mechanism known as parole authority, which empowers the government power to admit certain migrants into the U.S. on a temporary basis. Conservatives have accused the administration of abusing the tool to wave hundreds-of-thousands of foreign nationals into the country.

“It’s stuck. Bad,” Sen. Lindsey Graham, R-S.C. told reporters when asked about the state of talks. “I’m not asking for H.R.2,” he added, referring to the House GOP’s party-line border bill. “But I want parole to be changed.”

A Senate aide briefed on the discussions also confirmed to Semafor that “parole is a real hangup” between the parties.

Republicans have demanded major reforms to U.S. asylum and border enforcement policies as the price for passing a new round of aid for Ukraine. The already difficult talks became increasingly bogged down after House Speaker Mike Johnson met with Senate Republicans at their Tuesday lunch, where he pressured them to pass as much of the House GOP’s signature border legislation as possible.

That bill would drastically narrow the Department of Homeland Security’s authority to provide humanitarian parole for large groups of people, among other stringent measures.

“Speaker Johnson said to the maximum extent possible, we need to demonstrate a lot of the priorities that were in H.R.2,” Sen. Thom Tillis, R-N.C., one of the GOP negotiators, said in an interview.

The Biden administration’s use of its parole authority has been a major point of contention with Republicans as the two sides have wrestled over how to handle the border.

Under longstanding federal law, the Department of Homeland security can let migrants who lack visas into the country on a temporary, case-by-case basis for either “urgent humanitarian reasons” or when there is a “significant public benefit.”

Biden has wielded that executive power to create a pathway to the U.S. for large numbers of Ukrainian and Afghan refugees. A more recent program aimed at Venezuelans, Cubans, Nicaraguans, and Haitians is expected to give 360,000 people entry to the U.S. by the end of 2023.

The administration argues that its approach provides migrants seeking asylum a safer, more orderly path into the U.S. instead of making the dangerous trek to the US-Mexico border, provided they can secure a private sponsor to financially support them and pass a background check. They’re then able to apply for a work permit and asylum, and live in the US for up to two years.

Biden is not the first president to lean on parole for humanitarian emergencies. “It’s been an extremely important kind of a failsafe for every administration that we’ve had,” Doris Meissner, an asylum expert at the Migration Policy Institute, told Semafor. “Both Republicans and Democrats have turned to using it when there are no other ways of meeting immediate needs.”

But parole has also become one of the administration’s favored tools for managing the daily crush of arrivals at the southern border, which has swamped detention facilities and the ability of agents to process individuals. Between 2021 and mid 2023, border patrol agents offered parole to 718,000 migrants who were found between legal ports of entry, often releasing them into the country for a matter of months until their removal hearings.

“In 2022, the Border Patrol used parole quite a lot because they were overwhelmed and processing somebody for parole took about half an hour in comparison to processing somebody for a notice to appear in [immigration] court, which took about 90 minutes,” Aaron Reichlin-Melnick, policy director at the American Immigration Council, told Semafor.

Under a much more high-profile initiative, asylum seekers who arrive at a legal port of entry after applying ahead of time through a cell phone app known as CBP One can be paroled into the U.S. for a year or more while their case pends.

Though the Biden administration argues that they have reduced illegal entries, its parole programs have become a legal and political target for Republicans.

Twenty-one states led by Texas are waging a lawsuit to halt the program for the four countries including Venezuela, arguing the administration exceeded its authority. Texas also sued the administration over the CBP One program, arguing it was “illegally pre-approving” migrants to “go where they pleased.” Republicans on the House Committee on Homeland Security accused the administration of “shocking abuse” of the app, after they obtained documents showing about 267,000 individuals had been paroled into the country after scheduling an arrival through it.

It’s unclear at this stage exactly what changes to the parole system Senate Republicans are currently pushing for in their talks.

But adopting H.R.2’s legislative language would virtually eliminate the president’s parole authority as it exists today, according to Reichlin-Melnick. “It would essentially mean that parole could only be used for assisting law enforcement and where people needed to come to the US for medical treatment or to attend a funeral in very rare circumstances,” he told Semafor. “That is very different from how parole has been used in the past.”