Bipartisan Plan to Trade Immigrant Rights for Ukraine Money Is Sinking Fast

“I think this is a ridiculous position to put us in,” said Democratic Sen. Chris Murphy of the negotiations.

WASHINGTON, DC - OCTOBER 13: The U.S. Capitol Building is secured in response to a call for a "Day of Rage" on October 13, 2023 in Washington, DC. Security has increased across the U.S. in response to last weekend's Hamas attacks on Israel. (Photo by Win McNamee/Getty Images)
The U.S. Capitol Building on October 13, 2023 in Washington, D.C. Photo: Win McNamee/Getty Images

A bipartisan effort to gain votes for a bill that would trade immigrant rights for military assistance to Ukraine appears to be falling apart, getting traction with neither Democrats nor Republicans. The plan, reported yesterday, would attach a border enforcement component to President Joe Biden’s $106 billion supplemental funding request.

“I think this is a ridiculous position to put us in,” said Sen. Chris Murphy, a Democrat from Connecticut. “Holding Israel aid and Ukraine aid hostage to solving a complicated domestic issue is really unfortunate.” 

The current negotiation has been the latest in a series of efforts by Democrats to placate Republican criticisms of Biden’s handling of the southern border, as well as an effort by Senate Minority Leader Mitch McConnell to win Ukraine funding and placate Republicans skeptical of the war.

The so-called Gang of Four negotiators includes Murphy, who chairs the appropriations subcommittee that funds immigration operations at the Department of Homeland Security; Sens. Thom Tillis, R-N.C., and Kyrsten Sinema, I-Ariz., who have made themselves fixtures in migration policy negotiations during the current Congress; and Sen. James Lankford, R-Okla., an avowed immigration hawk with close ties to Donald Trump senior adviser Stephen Miller.

Hispanic Caucus senators, historically included in bipartisan migrant policy talks, were not happy to be excluded from the negotiating room. “There are four Democratic members of the United States Senate who are Latino and it’s important that their ideas, their inclusion, their expertise to be included in this,” said Sen. Ben Ray Luján, D-N.M., when asked if Murphy should be negotiating migrant policy with GOP nativists on behalf of Senate Democrats. 

Democratic Sen. Catherine Cortez Masto has been a nonfactor in the negotiations, despite having little to fear electorally having just won her reelection last year in Nevada. Sen. Bob Menendez, D-N.J., usually a vocal advocate for migrant rights, has been sidelined by criminal charges.

Murphy rejected the characterization of nativists versus migrant rights. “We’ve been engaged in serious talks and I’m not really sure they want to get ‘Yes,’” he said of Lankford and Tillis, implying that his GOP counterparts may be negotiating in bad faith. 

“I know Padilla would like to legalize 14 million people,” said Tillis. 

“No hay acuerdo,” Sen. Alex Padilla, D-Calif., who chairs the Senate Judiciary subcommittee on immigration, countered on Tuesday when I asked if asylum rights were on the chopping block, a Tillis priority. There’s still no deal. “If we’re going to continue to entertain these negotiations there has to be consideration for legalization,” he continued. 

On Wednesday, Padilla and Judiciary Committee Chair Dick Durbin issued a joint statement signed by nine other Senate Democrats demanding that any permanent changes to asylum rights include “a clear path to legalization for long-standing undocumented immigrants.”

Right-wing groups like Heritage Action on Tuesday came out against Ukrainian military funding, an ominous foreshadow for the House prospects of any Senate bill. “A group of senators is undermining Republican unity and effective policy solutions by negotiating with Democrats who support open border policy,” Heritage Action President Kevin Roberts wrote in a statement. “Worse, the proposal coming out of these ‘negotiations’ will likely be used as leverage to advance President Biden’s request for $106 billion in fiscally irresponsible spending, including an additional $60 billion for Ukraine that fails to meet conservative standards and $13.6 billion for fake ‘border security’ that would accelerate Biden’s open border operations.”

The right in Congress is deeply unhappy about being asked to trade a watered-down version of the party’s aspirational immigration crackdown bill for Ukraine funding. “It’s not about the border, it’s about a fig leaf for funding Ukraine,” as one Senate GOP aide told Emily Jashinsky of “Counter Points.”

A senior Democratic aide granted anonymity to discuss the bill conceded it “is going to make nobody happy.” 

At issue is whether Republicans will agree to fund the Ukrainian military in a war with Russia if Democrats agree to further gut migrant rights during Biden’s presidency while militarizing the border at taxpayers’ expense. The proposed change would sacrifice credible fear standards in asylum screening, severely narrowing the definition of who is eligible for safe haven in the U.S. Current standards require that migrants applying for asylum demonstrate to an immigration judge a “significant fear” of death, persecution, or torture if they’re returned to their country of origin. The president’s supplemental request also includes funding for 1,600 asylum officers and 1,300 Border Patrol agents to catch and expedite the processing of asylum-seekers.

GOP senators have also floated the idea of restricting the use of advance parole to limit migrant detention at the border, although Sen. John Cornyn, a Texas Republican with influence over his party’s immigration outlook in the Senate, tells The Intercept that ending Biden’s special designation of parole for migrants from Cuba, Venezuela, Haiti, and Nicaraguans is a priority for GOP negotiators. 

This is especially true for migrant communities with no negotiator at the table as Tillis pushes to limit asylum rights and Lankford wants to limit the use of migrant parole. “It’s really about what to do with that 7,000 people that are currently released in the country,” said Tillis. 

Schumer’s office has taken the lead on writing a bill text with the tacit support of ailing Minority Leader Mitch McConnell who has made funding Ukrainian military operations a top priority. Whether House Speaker Mike Johnson has the votes or the political will to pass a border-plus-Ukraine bill remain open questions. 

House Republicans have famously failed to pass even the most basic funding measures in the current Congress. A motion to vacate rule leftover from Kevin McCarthy’s doomed speakership remains in place that allows any member of Johnson’s majority party to demand a vote to remove him within 48 hours. 

Nevertheless, allies close to Schumer insist a bill text is imminent. Migrant rights advocates for and the American Immigration Council tell The Intercept that despite being cut out of negotiations by the Gang of Four, the senator’s office has been adamant about making themselves available for updates on the legislation which is expected to be introduced as early as this week.

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