Bills
| 3.23.22

Should Congress Close Asylum Loopholes & Change Rules Regarding the Detention of Children? (S. 1494)

Do you support or oppose this bill?

What is S. 1494?

(Updated February 16, 2022)

This bill — the Secure and Protect Act of 2019 — would aim to protect minors who entered the country illegally while in custody as their immigration case plays out and establish refugee processing centers in Mexico & Central America where asylum claims could be processed to reduce the frequency of illegal entry into the U.S. It would also make reforms to deter fraudulent asylum claims, in addition to increasing resources for immigration courts to process cases more quickly. A breakdown of its various provisions can be found below.

Protection of Minors

This section would allow for the detention of migrant children apprehended with their parents or guardians in family units. The amount of time migrant children could spend in detention would be increased from the current 20 days (established by a lawsuit settlement known as Flores v. Reno) to 100 days. Removal proceedings for migrant children and families with children would be prioritized and a 100-day completion goal would be set for immigration courts to decide such cases.

The Dept. of Homeland Security (DHS) would have sole discretion to determine standards for detention related to migrant children, and states would be prohibited from requiring that immigrant family detention centers be licensed by states. Additionally, eligibility for Special Immigrants Juvenile status (SIJS) would be restricted to only those who cannot reunify with either parent.

Rules regarding unaccompanied children (UACs) would be revised to allow the expedited deportation of UACs within 48 hours of their apprehension regardless of the country they’re from (current law only allows expedited deportation for UACs from Canada or Mexico). UACs would be required to stay in the custody of the Office of Refugee Resettlement until a final decision is made in their case.

Asylum Reform & Preventing Asylum Abuse

Applications for asylum made by residents of Northern Triangle countries (El Salvador, Honduras, and Guatemala) would have to be made at U.S. ports of entry or at refugee processing centers to be established in those countries and in Mexico. Within 240 days of this bill’s enactment the State Dept. would establish refugee application and processing centers outside the U.S. in consultation with the Dept. of Homeland Security. One center would be established in Mexico and at least three would be established in Central America.

Applicants would be ineligible for asylum if they have been convicted of a felony; have been deported; are inadmissible on health, criminal, or security grounds; or are residents of a country that has a refugee application center or a country that borders such a country.

Asylum applicants who establish that they have a credible fear of persecution would be referred to an immigration judge. The definition of “credible fear” would be revised to require the applicant to show that it’s “more likely than not” that they would face persecution if they return to their home country (the current standard requires a “significant possibility” of being persecuted).

The Justice Dept. would be authorized to hire at least 500 additional immigration judges and a corresponding amount of support staff, as necessary, to speed the processing of immigration cases. Immigration and Customs Enforcement (ICE) would be authorized to increase the number of attorneys and support staff in a manner consistent with the workload staffing model to support the increased number of immigration judges.

Argument in favor

This bill would reform and improve broken immigration laws related to asylum and the detention of children who enter the country illegally. It would require asylum applications to be made in Central America or Mexico, making it unnecessary for migrants to enter the U.S. illegally.

Argument opposed

While this bill may include worthwhile provisions to address the influx of unaccompanied minor children and migrant families crossing the border, it isn’t a broad enough solution to the problems facing U.S. immigration policy.

Impact

Unauthorized immigrants, particularly unaccompanied minors and migrant families; DHS; Mexico & Central America; and immigration courts.

Cost of S. 1494

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Lindsey Graham (R-SC) introduced this bill to strengthen border security by reforming “broken and outdated laws related to asylum and children.” In a press release, Graham explained:

“The number of people seeking entry into the United States coming from Central America has doubled since last year, creating both a humanitarian and national security crisis. My legislation, the Secure and Protect Act, would fix loopholes in our asylum law, requiring Central American immigrants to apply for asylum within their country or Mexico, not the United States, and allow more time to process claims involving minor children. These changes, according to Acting Secretary McAleenan, would stop most of the illegal flow coming from Central America.”

Acting Homeland Security Secretary Kevin McAleenan testified before the Senate Judiciary Committee and thanked Graham for introducing this bill. McAleenan offered the following statement in his opening remarks:

“We will continue to take aggressive action — and marshal resources from across DHS — to mitigate the crisis, and protect vulnerable people in our custody by expanding medical care, creating temporary facilities, improving transportation. However, the current state of affairs is not sustainable. Without key fixes and reforms, the American people will spend increasing sums of money on a worsening crisis. In order for us to solve this crisis and to create lasting change at the border, we must address the vulnerabilities in our legal framework. I am asking for narrow and targeted changes to our laws that will restore integrity to our immigration system and remove the incentives for families and children to cross our border illegally. I believe that, once implemented, these changes will represent a huge step forward in addressing this crisis and preventing further abuse of vulnerable populations by criminals.”

While Senate Judiciary Committee Democrats didn’t say that they would oppose this bill outright, several expressed a willingness to work to improve it in a bipartisan fashion. Sen. Dick Durbin (D-IL) referenced the House-passed American Dream and Promise Act as something that should be considered for inclusion in final bill, while Ranking Member Dianne Feinstein (D-CA) suggested drawing up an aid package to improve conditions in Central America.

This legislation has the support of one cosponsor, Sen. Martha McSally (R-AZ).


Media:

Summary by Eric Revell

(Photo Credit: U.S. Customs and Border Protection / Public Domain)