'Title 42 on steroids': Democrats consider expanding migrant detention and deportation in order to pass Ukraine aid

Immigration advocates are furious at the potential for the administration getting new powers to expel migrants from the country.

Migrants line up at a remote U.S. Border Patrol processing center after crossing the border  from Mexico in Lukeville, Ariz., on Dec. 7.John Moore / Getty Images
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WASHINGTON — Democratic lawmakers and the White House are considering giving the administration new powers to expel migrants from the country, as part of a potential immigration overhaul to satisfy Republicans who are blocking Ukraine aid, according to two sources familiar with the discussions. 

The sources also said that a significant expansion of migrant detention and deportation was also on the table — although there is not even a formal framework of a deal at this point. Sen. James Lankford, R-Okla., plans to brief Senate Republicans on the status of talks Wednesday afternoon, following negotiators’ meeting with White House officials that happened Tuesday night, three sources confirmed. 

Immigration advocacy groups are furious and are likening the proposed authority to Title 42, the Covid-era public health order implemented by former President Donald Trump that made it easier for the U.S. to expel migrants. The pro-immigration group FWD.us is calling the proposal “Title 42 on steroids” and argues that it would allow the president to declare an indefinite emergency for almost any reason.

On Wednesday, Sen. Thom Tillis, R-N.C., said negotiators are still working out specifics of the deal and urged senators to stay in town and not leave until they have an agreement.

“We’ve seen now what the White House has sent over. I think, to the extent that I’ve heard some Democrats express concern, I think that’s progress,” Tillis said. “This is something to build on. And I for one think that we should stick around until we get it solved. I don’t believe that we should leave next week.”

Two sources familiar with the Senate negotiations said the policy proposals no longer include expanding expedited removal of migrants from the interior of the country, which could have potentially allowed for the expulsion of migrants from major cities such as New York and Chicago, which have seen a huge influx over the past year. 

Immigration advocates fear those powers could have led to more profiling and that migrants would have needed to keep documents with them wherever they go, one source with the Congressional Hispanic Caucus told NBC News.

Another provision under consideration by Senate negotiators would mandate the detention of migrants pending the adjudication of their claims, according to one source familiar with the discussions.

One CHC source slammed the proposal as “logistically impossible” due to the limited number of detention facilities; the U.S. government does not have the physical infrastructure needed to detain all migrants who enter the country illegally. Two DHS officials told NBC News that the provision could “break the border” because of the large number of migrants who would be detained indefinitely because their countries refuse to take back deportees. 

Under its supplemental funding request, the White House asked for more funding for detention beds.

If the White House and Democratic leaders include the proposed policy changes to immigration as part of a supplemental funding package, CHC leadership is expected to actively and vocally work to tank the measure, one senior congressional source told NBC News, accusing the White House and Senate leaders of “refusing to engage, consult or lay out what they’re willing to accept” to immigration advocates.

CHC members have been increasingly frustrated with the White House, saying that officials have refused to engage with them on their concerns on the border measures. They demanded an “urgent” meeting with the White House more than a week ago but have yet to receive a sit-down.

A spokesperson for Sen. Chris Murphy, D-Conn., one of the lead negotiators on the supplemental funding bill, declined to comment.

The Biden administration has urged Congress to pass the $106 billion supplemental funding bill, which would include aid to Ukraine and Israel as well as funding to strengthen security at the U.S. southern border. Republican negotiators have balked at approving new funding for Ukraine without broader immigration policy changes.

President Joe Biden has said that he’s willing to make concessions and compromise with Republicans to push the supplemental funding bill through. But on Tuesday, during a news conference with Ukrainian President Volodymyr Zelenskyy, he warned against tying passage of much-needed Ukraine aid to border funding.

“Holding Ukraine funding hostage in an attempt to force through an extreme Republican partisan agenda on the border is not how it works,” Biden said. “We need real solutions.”

Vanessa Cárdenas, executive director of America’s Voice, said that it could dampen President Biden’s re-election chances in 2024 by alienating Latinos and young voters.

“Giving in to Republicans’ demands and adopting Trump-Miller policies is an extreme and unnecessary move and amounts to both policy and political malpractice,” she said. “Advancing these draconian proposals will not get the Biden administration any credit from the GOP, and it might not even get them the aid the president so desperately wants and Ukraine so desperately needs.”

Still, a White House official pushed back on the suggestion that the Biden administration had already agreed to any immigration policy changes. 

“The White House has not signed off on any particular policy proposals or final agreements, and reporting that ascribes determined policy positions to the White House is inaccurate,” White House spokesperson Angelo Fernandez Hernandez said. “As the President said yesterday, we are working to find a bipartisan compromise, both in terms of policy and funding, in relation to the border. We are encouraged by the progress made during yesterday’s meeting.”