Republicans on the Senate Judiciary Committee recently unveiled a proposal to fix the Biden administration’s policies that they claim are causing the crisis at the southern border, prioritizing instead the reforms they think are most critical to stemming the flow of illegal crossers now.

Their proposal ignores what is happening in the interior of the country, just focusing on what is happening at the border. This will not stem the flow of illegal crossers, however. It is the administration’s laxinterior enforcement policy that is attracting the record-breaking number of illegal crossers.

The administration is prohibiting enforcement measures against deportable migrants in the interior of the country unless they pose a threat to national security, public safety, or border security. Consequently, illegal crossers have little, if any, risk of being deported once they have reached the interior of the country, which encourages them to keep trying until they succeed in reaching the interior.  

Let’s go over some highlights from the proposal.


Safe third country. Make migrants ineligible for asylum if they have transited through at least one country outside their home country unless they can show that they sought and were denied protection in each such safe third country.

This won’t prevent migrants from using a bogus persecution claim to get into the country.

The United States is a party to the 1951 Convention and its 1967 Protocol, which has a refoulment provision that prohibits parties from returning a refugee to a country where he would face persecution. The United States meets this obligation with a mandatory withholding of removal provision that prohibits deporting a migrant to a country where it is more likely than not that he will be persecuted but permits deportation to any other country that will take him.

This prohibits the administration from summarily removing a migrant who asserts a persecution claim even if he is ineligible for asylum under the safe third country rule. His persecution claim would have to be evaluated to determine whether he is entitled to withholding of removal.

This takes time, especially when the border patrol is overwhelmed by illegal crossers. And the Border Patrol can only hold illegal crossers for 72 hours before transferring them to ICE, which only detains around 35,000 migrants. Consequently, many of them would be released to wait for a determination on whether they are entitled to withholding, which would give them an opportunity to disappear into the interior of the country.

Eligibility. Raises the asylum “credible fear” screening standard from “significant possibility” to “more likely than not,” which will weed out non-meritorious persecution claims earlier in the asylum process.

This may reduce the number of new cases the immigration court has to adjudicate, but it will not end the backlog crisis that the administration has created by letting a tsunami of asylum seekers into the country.

The immigration court has a backlog of 2,794,629 cases, and the administration is not making any progress on reducing it. The court received 1,488,110 new cases in fiscal 2023, and only completed 669,011. This doesn’t just result in very long waits for an asylum hearing — it also makes it difficult to get removal proceedings for deportable migrants.

Even if the size of the immigration court were to be increased from the 600 judges it has now to 1,349 judges, it would still take 10 years to clear the backlog. 

Frankly, I don’t think it is possible to end this crisis.


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: