I’m not sure anyone knows if there is any way to bridge the basic differences here, which means Congress really may go on recess without responding in any way to what has become a humanitarian crisis at the southern border.
But here’s something that could make compromise even harder to reach.
An analysis of the GOP proposal circulating among House Dems homes in on an aspect of it that has gotten little attention. Dems worry that this particular provision could actually weaken protections for kids who genuinely qualify for asylum and/or deportation relief.
This goes beyond the proposed changes to the 2008 law that have attracted the most attention, which center on how to expedite the removal of those who don’t qualify for relief. The key bullet point in the proposal offered by GOP Rep. Kay Granger — the head of the GOP border working group — is this one:
Congress must address the occurrences of fraud in our asylum system. Baseless claims crowd the immigration court system and delay processing for those with legitimate claims. The standard under current law that allows an alien to show a “credible fear of persecution” needs to be examined and addressed to ensure a fraud-free system moving forward. In addition, criminal aliens and criminal gang members should not receive asylum.
This is vague, but the suggestion of revisiting the “credible fear” standard out of fear of “fraud” by these children has Dems worried. As a legal memo being circulated by House Dems puts it, the current process for expedited removals allows people who “raise a credible fear of persecution be placed in ordinary removal proceedings,” for their protection.
“The credible fear standard was purposefully kept low to ensure that we not deport legitimate asylum seekers and that all persons with a significant possibility of establishing asylum got a chance to apply,” the Dems’ memo continues. “Raising the credible fear standard…would result in the removal of bona fide asylum seekers that we have a legal and moral duty to protect.”
Barring further detail from House Republicans, it’s impossible to know what their proposal would do on this front. But the broader point here is that, with Republicans loading up their proposal with get-tough-on-the-border measures, it’s hard to see how Congress will find a way to compromise on any response.
It’s true that Obama has signaled general support for some kind of tweaks to the 2008 law, and backed off when Democrats balked. John Boehner is now asking Obama in a formal letter whether he supports any such changes. That’s a fair question. But ultimately, even if Obama does clarify that he supports some kind of changes, it’s still not clear that any border proposal can pass the House.
Indeed, in urging Obama to declare support for such changes, Boehner is essentially saying that he needs help in corralling House Dem support for his proposal. That’s because House conservatives are already balking at supporting the proposal because they don’t believe Republicans should pass anything to address the crisis. Why? As Politico reports, they are wary of acting because it would help Obama solve what they view as his mess and it could lead to — shock! horror! — negotiations with the Senate over immigration, and who knows where that could lead?
And so Boehner will probably need a large bloc of Dems to pass anything. But to win over enough House Republicans, the current proposal is getting loaded up with more provisions designed to speed up deportations that could have unforeseen humanitarian consequences — such as the “credible fear” measure. Yet that will only make winning over Dems harder.
In fairness, getting any proposal through the Dem-controlled Senate will also be tough. But Dem aides think there are probably ways to tweak the 2008 law that would be acceptable to Dem Senators while also winning over a handful of Republicans to get to 60. But the House is another matter entirely. It remains unclear whether any proposal can pass it.