Sen. Kyrsten Sinema, others want to avoid 'unintended consequences' in Senate border deal

Lawmakers involved in negotiations to send military aid to U.S. allies said they are putting a priority on getting the language right in the bill's border security and immigration provisions to avoid unintended consequences.

A working group of senators, including independent Sen. Kyrsten Sinema of Arizona, Republican Sen. James Lankford of Oklahoma and Democratic Sen. Chris Murphy of Connecticut are crafting an agreement to pass a $110 billion aid package.

The bulk of the funding would provide military assistance to Ukraine in its fight against Russia, but the bill includes funding for Israel and Taiwan as well. The legislation would allocate nearly $14 billion to strengthen security along the U.S.-Mexico border. The bill has stalled in the Senate under Republican pressure to reduce the number of migrants crossing the U.S.-Mexico border.

"We're dealing with very, very difficult, complex issues. Drafting is very technical. It must be done incredibly precise and to avoid unintended consequences and decades of litigation," Sinema told The Arizona Republic. "And so this is really hard. But everyone is working in good faith to solve this crisis."

With Congress on holiday break until Jan. 8, the working group of senators will continue negotiating and meeting virtually during the break. Lawmakers are closer to reaching a deal, but are still working through several big issues, a Democratic aide said.

Policy experts acknowledged that while the draft language in the deal can play a crucial role, many times those unforeseen impacts do not come into focus until months or years after the changes take effect.

Unintended consequences are a big part of nearly all immigration legislation, according to Aaron Reichlin-Melnick, the policy director at the American Immigration Council, a Washington, D.C.-based advocacy organization.

He said it's better for them to take their time and to do it right, but expressed little confidence that whatever deal is struck would solve the underlying issues that are driving up global migration to the U.S.-Mexico border.

"There is widespread agreement among policy experts that in order to get a handle on what's happening on the border, you need to do more than just crack down. You need to create alternate legal pathways. You need to provide new processing needs," Reichlin-Melnick said. "But right now, we're not seeing new processes. We're just seeing new walls put up within the existing process framework and new penalties and not much else."

Sinema, Murphy and Lankford declined to comment about the specifics of the ongoing negotiations. But Sinema, who has staked out space in the Senate as a dealmaker and who chairs the Homeland Security subcommittee on Government Operations and Border Management, said she was taking a two-pronged approach.

"The first prong is to provide policy and financial relief, right? So we need policy changes to border policy and to asylum policy because it is currently being exploited by the cartels. And also, we need the financial resources to enact those new policies," she said.

The second prong, Sinema added, is "to bring disparate positions together and to find common ground between the two parties and help them identify the so-called sweet spot" in order to reach an agreement and get it to President Joe Biden.

Details are likely to be kept under wraps until a deal is reached, but some of the potential changes under consideration include raising the credible-fear standards that migrants must pass in order to start their asylum claims in the country and expanding nationwide the use of fast-track deportations known as expedited removals, which are currently limited to a 100-mile zone next to the border.

Lawmakers are said to be considering codifying into law a Trump-era transit ban that would bar migrants from claiming asylum in the U.S. if they didn't apply for protection in another country on their way to the border.

“It is clear there are multiple unresolved issues that will take weeks to resolve rather than hours. It is better to get this done right rather than fast," Lankford said in a written statement as in-person negotiations wrapped up last week. "This is a complicated area of law; however, the issue of border security is not complicated to anyone outside of Washington, D.C. I am committed to work through the next few weeks to restore order on our chaotic southern border.”

Earlier this month, the White House joined the fray in the negotiations and appeared ready to back some of the changes to the asylum system. Those proposals face almost total opposition from policy experts and migrant advocacy groups.

“Through these proposals, the Biden administration has made it clear that they are willing to sacrifice our values at home in pursuit of defending our allies’ values abroad. We can and should be able to do both," said Laura St. John, the legal director for the Florence Immigrant and Refugee Rights Project, which provides legal assistance to migrants and asylum seekers in Arizona. "It is unconscionable to trade away the fundamental rights of people seeking safety in a funding dispute."

Policy experts such as Reichlin-Melnick at the American Immigration Council said there were numerous examples in recent years of U.S. border and immigration policies adopted to address one problem, only to then create other seen or unforeseen consequences.

He pointed to Title 42 as one of the most notable, recent examples. The public health rule allowed U.S. border officials to immediately expel migrants back to Mexico during the COVID-19 pandemic. But since the expulsions didn't carry any consequences, they enabled migrants to attempt to cross the border repeatedly, leading to a surge in crossings.

Reichlin-Melnick said that because immigration law is so complex, unintended consequences are difficult to avoid.

"Making a few changes here and there may not seem like a huge impact, but that can have ripple effects throughout the entire system," he added.

Another example he pointed to is the president's parole authority, which has come under intense Republican scrutiny since the Biden administration has been using parole to release thousands of migrants processed at the border. Republicans have been attempting to end or curb that authority.

Doing so would limit the administration's tools to deal with other urgent situations, Reichlin-Melnick said, pointing to the use of humanitarian parole to process thousands of Afghan allies after the Taliban took over the country, or when thousands of Ukrainians arrived at the border after the Russian invasion.

Warning: US citizens urged not to travel to Rocky Point until Lukeville border crossing reopens

The language used to draft legislation also can have a significant impact on the outcomes as well, and even individual words can have far-reaching consequences. The Supreme Court will hear oral arguments during the first week of January on a case that hinges on the language within U.S. law to begin removal proceedings.

A Salvadoran man is challenging his order of removal from the country for not showing up to his court hearing arguing that his initial "notice to appear" document did not have a date and time. He later received a secondary notice with those details.

With two appellate courts split on the issue, the justices will have to determine in Campo-Chaves v. Garland whether a "notice to appear" must constitute a single document that includes all necessary details for the proceedings, such as date and time, as opposed to two or more notices issued at different times.

Have any news tips or story ideas about immigration in the Southwest? Reach the reporter at rafael.carranza@arizonarepublic.com, or follow him on X (formerly Twitter): @RafaelCarranza.

This article originally appeared on Arizona Republic: Migrant border crisis: Sen. Kyrsten Sinema part of border negotiations