Immigration Insights

19 Ways the Secure and Protect Act of 2023 Could Affect Immigration

Article by Scott D. Pollock & Associates, P.C. staff

June 2, 2023

The Secure and Protect Act of 2023 (S.425) is a controversial legislation that Senator Lindsey Graham (R – South Carolina) introduced on February 14, 2023. This bill seeks to significantly change the asylum process and policies regarding migrant families and unaccompanied children.

Graham submitted similar legislation in 2019 called the Secure and Protect Act of 2019. While it did pass the Senate Judiciary Committee, it did not pass in Congress.

While some provisions of the Secure and Protect Act of 2023 may streamline specific aspects of the immigration process, there are concerns that the legislation could also create additional barriers for vulnerable individuals seeking protection in the United States.

Additionally, the potential implications of these changes on the well-being and rights of migrant families and unaccompanied children have raised significant concerns among immigration advocates and human rights organizations.

As the bill moves through the legislative process, it will be crucial for policymakers and stakeholders to carefully consider the potential consequences of these proposed changes on immigration policy and migrant communities.

This overview will delve into the details of the Secure and Protect Act of 2023 and its potential consequences by highlighting 19 changes that could significantly impact immigration policy and affect those seeking help through asylum in the United States.

How This Bill Could Impact Migrant Families

1. Removal of Flores settlement agreement restrictions

The bill effectively eliminates the Flores settlement agreement, which currently mandates that migrant children be held in detention for no more than 20 days. This agreement, established in the case of Flores v. Reno, also sets minimum standards for the care, treatment, and release of immigrant children.

Under the Flores Settlement Agreement, the following key provisions are in place:

Migrant children must be released from detention as quickly as possible, preferably to a parent, legal guardian, or adult relative. In cases where this is not possible, the child can be released to an appropriate adult or licensed program.
If a suitable sponsor cannot be found or if the child is deemed a flight risk or a danger to themselves or others, the child may be held in the least restrictive setting appropriate for their age and needs.
Children detained must be treated with dignity, respect, and special concern for their vulnerability as minors. The facilities must meet certain standards, such as providing access to education, recreation, and proper medical care.
The Flores Settlement Agreement also imposes a general rule that migrant children should not be detained for more than 20 days.

In contrast, the Secure and Protect Act of 2023 would allow for the detention of migrant children with their parents or guardians “pending the completion of removal proceedings,” extending the time migrant children can be held in family detention. This change has the potential to result in longer periods of confinement for migrant families, which could have various implications for their well-being and mental health.

2. Discretion for the Secretary of Homeland Security on detention conditions

The bill grants the Secretary of Homeland Security sole discretion to determine detention conditions for migrant children with their parents or guardians. Although the legislation does outline some baseline requirements for family residential facilities, this increased discretion could lead to varied conditions across detention centers and raises concerns about the potential for reduced accountability in ensuring adequate care for detained migrant families.

3. Prioritization of removal proceedings for migrant children and families

The proposed legislation prioritizes removal proceedings for migrant children and families by setting a 100-day completion goal for such cases. This accelerated timeline could lead to expedited removals but also pressure immigration courts and increase the risk of errors or oversights in adjudication.

4. Prohibition of state licensing requirements for immigration detention centers

The Secure and Protect Act of 2023 bars states from mandating state licensure for immigration detention centers that house families. This change may reduce state oversight of these facilities, affecting family detention centers’ quality and safety standards.

How This Bill Affects Unaccompanied Children

5. Expedited repatriation of unaccompanied migrant children

The Secure and Protect Act of 2023 allows for the expedited repatriation of unaccompanied migrant children (UMCs) from countries other than Canada and Mexico. This provision extends the swift return policy currently applicable only to children from contiguous countries, potentially resulting in more UMCs being returned to their home countries.

6. Requirement for UMCs to stay in government custody during proceedings

Under the proposed legislation, UMCs must remain in government custody during their immigration proceedings (except for those with sponsors or access to programs for unaccompanied children).

Prolonging UMCs’ confinement may subject them to additional psychological and emotional stress. Moreover, this policy may also strain government resources because the cost and capacity of detention facilities would need to be expanded to accommodate a potentially larger number of children.

7. Increased standard of proof for humanitarian relief

The bill requires UMCs to meet a higher standard of proof to pursue humanitarian relief. They must show they are “more likely than not” to be trafficked, persecuted, or tortured in their home countries. This increased burden of proof may make it more difficult for vulnerable unaccompanied children to obtain the necessary protections.

8. Specialized immigration officer interviews and decision-making

The Secure and Protect Act of 2023 delegates conducting interviews related to unaccompanied migrant children (UMCs) to immigration officers with specialized training. These officers’ decisions are deemed final and cannot be reviewed, which may expedite the process. However, this approach also raises concerns about the possibility of errors or injustices in the decision-making process because there is no avenue for appeal.

9. Restricted eligibility for Special Immigrant Juvenile status

The bill restricts eligibility for Special Immigrant Juvenile (SIJ) status to unaccompanied children who cannot reunify with either parent. This limitation may exclude some vulnerable children who may have been eligible for SIJ status under the previous criteria, potentially leaving them without a pathway to legal status in the United States.

How This Bill Could Impact The Asylum Process

10. Limiting eligibility for asylum claims

The Secure and Protect Act of 2023 aims to narrow eligibility for asylum claims by limiting it to individuals who enter the United States through designated ports of entry. As a result, those who enter through unofficial routes would be ineligible for asylum, reducing the number of applicants. This change could have significant implications for asylum-seeking individuals, potentially leaving vulnerable people without access to critical protections and benefits.

Additionally, implementing this policy could have broader implications for immigration enforcement and border control, affecting the number of people attempting to enter the country through unofficial routes.

11. Redefining “credible fear”

The bill also redefines “credible fear,” raising the initial standard of proof for asylum seekers. They would now need to demonstrate that they are “more likely than not” to establish eligibility for asylum, making it more difficult for applicants to pass the initial screening process.

12. New application fees at processing centers

The bill introduces a fee for applications at the refugee processing centers, which could create an additional barrier for asylum seekers, particularly those with limited financial resources.

13. Creation of refugee application and processing centers

The Secure and Protect Act of 2023 proposes establishing at least four refugee application and processing centers across Mexico and Central America. Asylum seekers from these regions and their neighboring countries would be required to apply for protection at these centers without entering the U.S., thus shifting the asylum process away from the U.S. border.

14. Changing refugee officers’ role in adjudicating cases

Under the new legislation, refugee officers would adjudicate cases submitted at the processing centers. This change would centralize the decision-making process and potentially streamline the processing of asylum applications. However, it could also prompt concerns about the quality and fairness of decisions.

15. Expansion of grounds for asylum ineligibility

The Secure and Protect Act of 2023 also broadens the grounds for asylum ineligibility to include any felonies and prior removals. This expansion would further narrow the pool of eligible asylum seekers and potentially disqualify many applicants with a criminal history or previous deportation from the United States.

How This Legislation Could Impact Humanitarian Parole

16. Limiting the executive branch’s humanitarian parole power

The Secure and Protect Act of 2023 seeks to limit the executive branch’s power to grant humanitarian parole. This would be achieved by preventing the government from granting parole to an entire group of people based on certain characteristics or circumstances. As a result, fewer people could benefit from this discretionary form of relief.

17. Narrowly defining qualifications for humanitarian parole

The bill also makes it harder for people to qualify for humanitarian parole by listing specific situations that would warrant parole. This more restrictive definition could make it more challenging for individuals needing humanitarian protection to obtain parole because they would have to meet the exact criteria described in the legislation.

How This Legislation Could Impact The Immigration Court Backlog

18. Increase in the number of immigration judges and support staff

The Secure and Protect Act of 2023 instructs the Attorney General to hire at least 500 more immigration judges and support staff. This increase is intended to tackle the immigration court backlog that has caused long wait times for asylum seekers and other immigrants going through the legal process.

19. Expansion of U.S. Immigration and Customs Enforcement staff

The bill not only adds more immigration judges, but it also requires an increase in the staff of U.S. Immigration and Customs Enforcement (ICE), including attorneys, that corresponds to the number of new judges. This expansion aims to strengthen the ability of ICE to manage and process immigration cases more effectively.

Scott D. Pollock & Associates, P.C. Can Help You Navigate Asylum

Filing for asylum is a complex process, and it can be difficult to successfully navigate this legal system without the help of an experienced attorney. At Scott D. Pollock & Associates, P.C., our attorneys are well-versed in the latest changes to U.S. immigration law and can help you find the best path to achieving the relief you need.