Senate Republicans fell short Thursday on a push to repeal a Biden administration policy that would overhaul how migrant asylum claims are processed after they cross the border.
In a rare stand-alone vote on an immigration issue, the chamber voted 48-46 to reject a resolution of disapproval filed under the Congressional Review Act, a process that allows Congress to shoot down federal agency policies with a filibuster-proof majority.
The vote fell along party lines, except West Virginia Democratic Sen. Joe Manchin III joined Republicans to support the measure. Also, Senate Minority Leader Mitch McConnell ultimately voted against the measure so he could preserve a procedural move to bring it up again.
The effort targeted a recently finalized policy that would allow U.S. Citizenship and Immigration Services officers to approve migrants’ asylum claims rather than send all asylum-seekers who cross the border into the backlogged immigration court system.
The policy, which is set to take effect Tuesday, aims to speed up asylum processing at the border and alleviate pressure on the immigration courts, where roughly 1.8 million pending cases means migrants often wait years for final decisions.
The new rule would expand the role of USCIS officers. When Border Patrol agents apprehend migrants who seek asylum, USCIS officers just screen those migrants for asylum eligibility and then send those cases to immigration court. And the only asylum requests that USCIS officers now decide are from migrants who make those claims outside of deportation proceedings, such as those who request asylum after entering the United States on a student or tourist visa.
Ahead of the vote, Senate Republicans claimed the policy would make it easier for migrants to request asylum and, as a result, draw more migration to the border.
Sen. James Lankford, R-Okla., said on the floor that the regulation “gives me some sense of hope” that the administration is trying to solve problems at the border. But he took issue with provisions in the rule that would allow migrants to walk away with faster approvals but still appeal denials in immigration court.
“While the executive branch is trying to do something, their something that they are doing doesn’t actually fix the issue. We have to change this issue in law,” Lankford said.
Close call
The Republican gambit fell short despite gaining the support of one Democrat who is known to break with his own party.
Wisconsin Republican Sen. Ron Johnson, who led the resolution, had appeared cautiously optimistic in the hours leading up to the vote. “I’ve heard that we just may pass this thing,” Johnson said Thursday morning. “We’ll see what the vote is.”
Johnson added, “I hope there’s some rational Democrats who say that we really shouldn’t have open borders.”
But four Republicans and two Democrats — including Sen. Jeff Merkley of Oregon, who recently announced a COVID-19 diagnosis — did not show up to vote.
After the vote, Manchin said, through a spokesperson, that by issuing this asylum policy, the Biden administration is “again further incentivizing or at least giving the appearance of further incentivizing additional immigration.”
But other Senate Democrats held rank, even those who have previously been critical of the Biden administration’s handling of high migration levels.
Sen. Catherine Cortez Masto, D-Nev., who has expressed reservations about the administration’s preparedness to lift pandemic-related asylum restrictions known as Title 42, questioned why Republicans would oppose a rule to streamline processing at the border.
“The asylum law rule is actually focused on taking immediate action and deporting individuals who don’t follow the recommendations or requirements here,” Cortez Masto said. “So I’m actually kind of confused, because that’s exactly what the Republicans want to do.”
Sen. Mark Kelly, D-Ariz., who recently co-sponsored legislation that would require the administration to keep Title 42 in place longer, said he voted against the resolution because he supports efforts to send more officers to the border and speed up processing.
“The idea is that if you want to expedite, you know, removal of asylum-seekers, you have folks there at the border to do that,” Kelly said. “That’s consistent with the ‘no’ vote.”
Some Senate Democrats accused their Republican colleagues of standing against the legal asylum process by holding the vote at all.
Sen. Ben Ray Luján, D-N.M., a vocal proponent of legislation to create a path to citizenship for undocumented immigrants, called the Republican resolution “hateful” and “not American.”
“It’s abundantly clear that those speaking in favor of this package do not want to see an asylum process and allow those seeking asylum to have an opportunity to get through those steps,” he said.
Next steps
It might not be the final Senate vote on the issue. Knowing he has Manchin’s support, Johnson could theoretically request another vote on the measure when the Senate returns from recess in June, and when he has full attendance from his Republican colleagues.
Although the policy officially takes effect Tuesday, Homeland Security Secretary Alejandro Mayorkas has said it won’t take effect immediately across the border and will be implemented in a phased approach.
Johnson said Thursday evening, through a spokesperson, that he’s pleased his resolution earned bipartisan support and the Senate “will be able hold another vote to disapprove of President Biden’s lawless power grab.”
But the resolution is unlikely to ultimately take effect, even if it did pass the Senate. The Biden administration issued a statement Thursday ahead of the vote stating its opposition to the resolution and promising a presidential veto, which would require a two-thirds majority in the House and Senate to overcome.
Kerri Talbot, who is deputy director for Immigration Hub and previously served as chief counsel for New Jersey Sen. Bob Menendez, said Republicans brought the resolution up “as a purely political vote.”
“But the vote did not make sense politically since the rule itself is actually a border security rule — it makes processing at the border more efficient,” she said in a text message after the vote. “So it really doesn’t make sense for Democrats to split with [President Joe] Biden on an effort to better manage the border.”
Still, the contested asylum policy may yet be struck down in federal court, where a number of Republican-led states have challenged the rule. Two federal judges in Texas and Louisiana, both appointed by former President Donald Trump, are considering lawsuits claiming the asylum rule is illegal.
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