Cortez Masto and Rosen vote for failed border bill in test of new immigration politics
On Sunday night, Sen. Kyrsten Sinema (I-AZ) released the highly anticipated text of a bipartisan national security bill unlocking aid to Ukraine in exchange for significant immigration and border reform.
By Wednesday afternoon, the bill was dead.
The $118 billion package would have given the Biden administration the authority to “close” the border — or cease processing most asylum claims — if the number of migrant encounters reaches a certain threshold. It would have also made asylum status more difficult to obtain and beefed up funding for the Border Patrol.
But by a 49-50 vote, the Senate voted against advancing debate on the bill. The final vote included support from 45 Democrats, including Sens. Catherine Cortez Masto (D-NV) and Jacky Rosen (D-NV), and four Republicans.
Immigration advocates said the border package represents a more right-wing approach relative to the 2013 effort negotiated by the Senate “Gang of Eight” to asylum in particular, upending decades of national precedent. Prior immigration deals traded — and fell apart — over taking a harsher tack on border enforcement in exchange for a pathway to citizenship for existing undocumented immigrants in the U.S.
The package’s existence represents a new modus operandi for immigration politics reflective of each party’s leaders: one in which Democrats were quick to coalesce around a bill that restricts asylum while offering nothing for “Dreamers” brought to the country illegally as children, and Republicans were unwilling to accept such a compromise.
President Joe Biden, who committed to signing the bill if it reached his desk, has taken a tough stance on immigration more reminiscent of his predecessor, saying he would “shut down the border right now.” Sens. Rosen and Cortez Masto lined up behind him.
“If people are serious about protecting our security and sovereignty — of sovereign nations around the world and here — we have to get started somewhere,” Rosen said in an interview, referencing the bill’s provisions providing security assistance to Ukraine and Taiwan.
But immigration advocates said the package marked a return to a Trump-era vision of the border, in which migration is discouraged and asylum is restricted.
“If a Democrat were not in the White House, Democrats would probably be in the streets, largely protesting the same exact bill,” said Michael Kagan, the director of the UNLV Immigration Clinic.
Former President Donald Trump, meanwhile, has railed against the deal, calling it a “great gift to Democrats.” His allies in Congress — including House Speaker Mike Johnson (R-LA) — echoed similar concerns, declaring the bill “dead on arrival.”
And even its supporters, such as Senate Minority Leader Mitch McConnell (R-KY), who demanded Ukraine aid be paired with border policy changes due to the increasing anti-Ukraine sentiment in the Republican Party, recommended members vote against it.
Rep. Mark Amodei (R-NV), the delegation’s lone Nevadan, said the chilly reception from Republicans reflects a lack of trust between the parties, in which members of his party don’t trust the Biden administration to implement anything they pass and are waiting for the election.
“If the border’s the biggest issue, then guess what, you'll have a new administration,” he said. “And if it's not, then maybe you won't.”
What’s in the bill
The border bill would have created three major changes to the way asylum claims are processed at ports of entry along the U.S.-Mexico border.
Most dramatically, it would have created a temporary expulsion mechanism to automatically “close” the border to most asylum seekers if migrant encounters exceeded 8,500 per day.
In December, Customs and Border Patrol (CBP) logged the highest number of monthly migrant encounters in its history — 302,000. Encounters are calculated by number rather than by person, so the figure includes repeat crossers, and does not factor whether it resulted in expulsion.
However, immigration advocates say the provision to temporarily close the border only pushes migrants toward crossing at more dangerous spots, further imperiling their safety. Kagan said the provision was tantamount to closing the asylum system — a “radical departure” from the way the U.S. has handled asylum seekers since the days of the Reagan administration.
Elizabeth Velazquez, a community organizer with left-leaning immigant advocacy group Make the Road Nevada who crossed the border in 2018 with her three children as an asylum seeker, said she feared that raising the credible fear standard — the legal threshold of fear of torture or persecution if they return to their countries that migrants must meet — and turning asylum seekers away at the border would imperil migrants such as herself.
She said whether or not official ports of entry are open, migrants will seek ways to enter the United States because the alternative is less safe than a risky crossing.
“The reason why I ran from my native [Guatemala] was because the gangs were trying to kill my children as well as myself,” she said through a translator. “So if we need to go ahead and march and fight and protest and do any of that, we will do it.”
Kagan said he worried about the possibility of the U.S. closing its doors to refugees seeking asylum after a humanitarian or political crisis if the border becomes overwhelmed.
“The U.S. Congress cannot just decree fewer people should come,” Kagan said. “What the U.S. Congress has some say over is how we process them after they arrive. Simply sending them back without even asking ‘Are you in danger?’ does not make the border less chaotic. It just makes it more dangerous for people in danger.”
Even though the bill would have allowed for 1,400 asylum seekers to be processed per day under the emergency authority, Kagan said the level of bureaucratic adaptation required to adjust to a new standard presents a challenge, even with the funding the bill would give agencies to hire additional personnel.
But lawmakers said funding for those agencies would help restore order to the asylum system.
“It's good policy when everybody can come together to secure more funding to address the challenges that we see at the border now, with a large number of immigrants coming to the border, and updating an old asylum system that needs to address the needs of today,” Cortez Masto said.
Additionally, the bill would raise the credible fear standard for asylum seekers, likely increasing the number of migrants who would be turned away, and aims to speed up the way asylum claims are processed by giving jurisdiction to U.S. Citizenship and Immigration Services (USCIS) rather than backlogged immigration courts.
On the other side of the ledger, the bill would provide work authorization for migrants who have successfully claimed asylum and family members of certain visa holders and would increase the number of legal immigration visas issued per year by 50,000 — changes both well-received by immigration advocates. It would also provide resources for agencies to target the fentanyl supply chain — a key priority for Rosen and Cortez Masto.
The inclusion of work authorization was key for Rep. Dina Titus (D-NV).
“What I hear… is they want to work, and they have to wait and wait and wait to ever get that permit,” she said.
Kagan, however, said the bill does little for immigrants already living in Nevada, and that the new efficiency provisions for processing would largely affect new migrants.
The bill also contains no protections for existing undocumented immigrants or DACA recipients, including thousands who are in the state. It also provides greater funding to agencies such as Immigration and Customs Enforcement (ICE) that have the authority to detain and deport undocumented immigrants.
“In isolation, some of the [provisions] I'm actually pretty enthusiastic about,” Kagan said. “But the problem is they're all comparatively pretty small fry relative to the complete closure of the asylum system.”
The messy politics
In rejecting the compromise, Republicans have created a strange new dynamic on immigration policies — Democrats are pushing for stronger border security, while Republicans argue they don’t trust Biden enough to empower him to do so.
“This is what the Republicans have been asking for,” Rosen said. “Why won't they vote on it now? Because of one person … Donald Trump is telling them what to do, saying we'll fix it when I get there.”
The package was opposed not just by sitting Senate Republicans, but by prospective ones as well. Nearly all of Rosen’s potential 2024 opponents, from front-runner Sam Brown to Jeff Gunter, came out against the bill. Brown has maintained that Biden and Democrats created the problem at the border, and that their interest in fixing it in 2024 is electorally opportunistic.
The political dynamics now offer Democrats the opportunity to message their willingness to fund border agencies and curb the asylum system while painting Republicans — who have long made securing the border a campaign issue — as the obstacle to doing so.
Even though the bill failed, immigration advocates said the fact that Democrats were willing to restrict asylum without gaining anything meaningful for Dreamers and undocumented immigrants is disappointing.
“The community, the Latinos, we have pushed — with or without being able to have the legality to vote — we've been able to move [Cortez Masto’s] candidacy,” Erika Marquez, an immigration justice organizer at Make the Road Nevada and a DACA recipient, said before the vote. “We've been able to help to get the votes for her. So, [supporting the bill] would definitely be a betrayal.”
Cortez Masto and Rosen emphasized that they want to do more for Dreamers, Temporary Protected Status recipients and other groups in Nevada that are in danger of losing their immigration status. But they said the crisis at the border — and in Ukraine and elsewhere — changed the negotiating dynamics.
“We will continue to fight for [them],” Rosen said. “But right in this moment, we’ve got to stop the drugs. We have to have an orderly flow. And we have to get the resources to people around the world to ultimately keep us safe everywhere.”
Electoral pushback on Democrats could be muted by the bill’s quick death. Clarissa Martinez de Castro, vice president of the Latino Vote Initiative at Hispanic advocacy group UnidosUS, said polling of Latino voters in Nevada and elsewhere consistently say they prioritize long-residing undocumented immigrants and having a secure, well-managed border — but that immigration, in polling from before the border bill, did not crack voters’ top five issues.
Still, Martinez de Castro said immigration could climb Hispanic voters’ priority list — a group that makes up nearly a quarter of the eligible voting population in Nevada.
While she said the bill did not address Latino voters’ immigration priorities and doubts it would “score big points” with those voters, it presents an opportunity for Democrats to get more engaged in the border debate.
“There's polling that shows that people say they hear more about the issue from Republicans, and from folks who are maligning that issue, than from folks who are trying to solve it,” she said.
Republicans, meanwhile, will have to contend with Democratic attacks that they were willing to abandon their policy principles in order to give Trump leverage in the general election. While unwilling to consider the Senate’s bill, House Republicans’ main play on immigration has been to impeach Homeland Security Secretary Alejandro Mayorkas — unsuccessfully, as it failed by one vote Tuesday night.
Titus previewed the campaign rhetoric House Democrats can use. She said impeachment — a tool that has only been used successfully once against a Cabinet secretary in the 19th century — betrays Republicans’ lack of seriousness on the issue.
“As far as immigration, they can't come up with a solution,” Titus said. “In order to keep beating the drum of immigration as a campaign issue, [they’ve decided] the way to do it is through the impeachment process.”
Amodei, who voted for the impeachment, said both chambers are locked in a “death struggle” on immigration, in which House Republicans and Senate Democrats are trying to send one another products that they know their counterparts have no interest in.
He said given the upcoming election, there’s no upside to trusting the other side to solve problems.
“You’ve got eight months left to see whether the death struggle is permanent,” Amodei said. “As in four more years, or not.”