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Senators introduce bill to continue border expulsions post-Title 42

Sens. Kyrsten Sinema and Thom Tillis lead an effort to effectively continue the pandemic-era border directive, which expires May 11

Sens. Kyrsten Sinema, I-Ariz., and Thom Tillis, R-N.C.
Sens. Kyrsten Sinema, I-Ariz., and Thom Tillis, R-N.C. (Bill Clark and Tom Williams/CQ Roll Call)

Sens. Kyrsten Sinema and Thom Tillis announced bipartisan legislation Thursday that would allow border agents to turn away migrants who cross the border without a hearing, one week before similar pandemic-era border controls are set to end.

The proposed bill, which is also backed by Sens. Joe Manchin III, D-W.Va., and John Cornyn, R-Texas, represents an effort by lawmakers to effectively continue the so-called Title 42 border policy, which is scheduled to end on May 11 with the expiration of the COVID-19 public health emergency order.

This policy, in place since March 2020, allows border agents to rapidly expel migrants who cross the border without considering their asylum claims under a public health law aimed at curbing the spread of disease. The Department of Homeland Security has projected border agents could encounter up to 13,000 migrants each day once the Title 42 policy is lifted.

The bill would allow agents to continue the expulsions without a public health need. It states that migrants who arrive “at or along” the U.S.-Mexico border would be expelled to Mexico, or to their country of origin or residence if Mexico refuses to accept them.

It does, however, exempt migrants from expulsion to a certain country if they would face persecution or torture there because of their membership in a social, political or religious group. Border agents may also exempt other migrants on a case-by-case basis for humanitarian or public health reasons.

Sinema, an Arizona independent who chairs the Senate Homeland Security and Governmental Affairs Committee’s border management panel, said in a news release that the Biden administration “failed to plan ahead and implement a realistic, workable plan” for when the Title 42 policy ended.

“Our legislation gives them more time to put a plan in place that will secure our border, protect Arizona communities on the frontlines of this crisis, and ensure migrants are treated fairly and humanely,” Sinema said.

Tillis, R-N.C., added in the news release that the bill “will help prevent the catastrophic fallout at the border we will soon see if no action is taken.”

Given that bills need 60 votes to advance in the Senate, it’s unlikely that their legislation will pass the chamber before the Title 42 policy ends, if at all.

Meanwhile, the Biden administration has rolled out a slew of policies aimed at curbing the expected spike in migration after the Title 42 border policy ends, such as expanding pathways for migrants to apply to come to the U.S. legally.

The administration also plans to reinstate fast-tracked deportation proceedings and to finalize a policy that will make it harder for migrants to qualify for asylum if they cross the border without authorization.

The bill introduced Thursday is reminiscent of an amendment put forward by Sinema and Sen. Jon Tester, D-Mont., in December for the fiscal 2023 government funding bill. Their amendment, which was not adopted, would have provided more funding for border processing and preserved Title 42 restrictions until a “proper plan to manage the crisis at our border” is in place. Tillis was the only Senate Republican to support it.

Sinema and Tillis have teamed up on bipartisan immigration efforts before. The duo crafted and circulated a framework for a broader bipartisan immigration deal last year when Democrats controlled both chambers, but the effort ultimately fell apart.

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