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U.S. Sen. John Cornyn eyes the seemingly impossible: a bipartisan deal on immigration

By Matthew Choi, The Texas Tribune

U.S. Sen. John Cornyn eyes the seemingly impossible: a bipartisan deal on immigration” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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EL PASO — A long trail of SUVs snaked out of El Paso carrying a group of U.S. senators into southern New Mexico on a recent, chilly night. Like a funeral procession, the oversized cars glided through traffic with hazard lights on, turning onto a paved road to survey portions of the Mexican border.

In one of the cars was Sen. John Cornyn, who helped organize the delegation’s trip to his home state. The Texas Republican, who has railed about the border crisis from Washington, D.C., for months, wanted his peers to see the situation with their own eyes and better understand Border Patrol’s work and its challenges. They drove into the pitch black night until coming across a pair of Border Patrol agents who had apprehended two weary Chinese nationals.

Cornyn and the other senators peppered the agents with questions, including whether the migrants had drugs; they did not. The senators were invited to look at the migrants’ travel documents and watch the agents confiscate their possessions. The senators heard explanations of the agents’ process in real time, including what lay in store for the migrants as they were processed in town.

Meanwhile, the Chinese migrants themselves — buried in their hoodies and far from the lush, humid greenery of their native Hunan province — turned away from the curious crowd. Their understanding of their fate was limited to what they could decipher from the Google Translate app on an agent’s cellphone.

Over the past two years, a revolving cast of Republicans has frequented the Texas-Mexico border — often led by Gov. Greg Abbott and at least once with former President Donald Trump — to attack President Joe Biden’s immigration policies that they say contribute to a porous frontier with deadly consequences for migrants and local communities. Border security has emerged as a party priority and conservative rallying cry, with calls being issued to impeach members of Biden’s administration.

The U.S-Mexico border on Monday, Jan. 9, 2023, in Sunland Park, New Mexico. To the left is Sunland Park, a checkpoint next to El Paso; to the right are the outskirts of Ciudad Juárez, Mexico.
The U.S.-Mexico border on Jan. 9 in Sunland Park, New Mexico. To the left is Sunland Park, a checkpoint next to El Paso; to the right are the outskirts of Ciudad Juárez, Mexico. Credit: Ivan Pierre Aguirre for The Texas Tribune

But this trip was different. It included both Democrats and Republicans — making it the first bipartisan group of senators to visit the border in years. The trip happened to fall one day after Biden made the first visit of his presidency to the border in the same Texas city. But even the GOP senators refrained from using the trip to attack him. Instead, they heaped praise on each other for looking for serious solutions on border security and immigration.

Cornyn exuded optimism. Riding the success of his historic congressional session last year where he helped pass the first gun safety bill signed into law in a generation, Cornyn is hopeful that his ability to strike deals across the aisle will help Congress achieve another elusive legislative goal: an immigration deal.

Such a deal would be epochal — it’s been 37 years since Congress passed meaningful immigration legislation, despite it emerging as a perennial political hot potato. He’ll be working in a Congress where few are expecting much substantive legislating — a Democratic-controlled Senate, a Republican-controlled House and a Republican conference engaging in bitter feuds don’t set a stage conducive to the cross-aisle cooperation needed to tackle one of the most divisive policy objectives on Capitol Hill.

But Cornyn also sees opportunity. Congress is at a crossroads on the issue, with record numbers of apprehensions at the border and growing attention on the nation’s long-broken immigration system. And Cornyn says he and his peers on the border trip have a proven track record of getting the impossible done.

U.S. Sen. John Cornyn looks through a border barrier in El Paso at Ciudad Juárez, Mexico during a night tour led by the National Border Patrol Council on Monday, Jan. 9, 2023.
Cornyn looks through the border barrier from El Paso into Ciudad Juárez, México, during a night tour on Jan. 9 led by the National Border Patrol Council. Credit: Ivan Pierre Aguirre for The Texas Tribune

“I’ve never seen the border in this bad shape,” Cornyn said. “There’s no alternative but to step up and try to deal with this the best we can. This group of senators has a history of dealing with tough political challenges. We’re all interested in solutions. And I think this current crisis cries out for a solution.”

In his efforts to capture lightning in a bottle for a second year in a row, Cornyn has assembled a familiar cast of characters who were vital to the passage of the gun bill including Arizona Democrat-turned-independent Kyrsten Sinema, who co-led the delegation with Cornyn, and Sen. Chris Murphy, D-Connecticut.

Sens. Mark Kelly, D-Arizona; Thom Tillis, R-North Carolina; James Lankford, R-Oklahoma; Chris Coons, D-Delaware; and Jerry Moran, R-Kansas, were among the other senators who attended the border tour.

Despite all the zeal, any path forward will face a considerable uphill battle. There is still major disagreement between — and within — the parties about what the underlying approach to the border should be and what problem they are solving for.

Many Republicans, especially those in the House, are pushing for a strict crackdown that would shrink asylum claims, end crossings between ports of entry and deport undocumented immigrants. Democrats are more interested in providing resources for migrants who enter the country seeking asylum and trying to secure protections for recipients of the Deferred Action for Childhood Arrivals program — commonly referred to as “Dreamers,” based on never-passed proposals in Congress called the DREAM Act.

All the while, migrants sit in legal limbo, waiting through yearslong backlogs in the nation’s broken asylum system. Millions of others remain unsure if their protected status as childhood arrivals will hold into the next year. And border communities stretch their law enforcement and social services resources thin as they are overwhelmed by migrants.

The game plan

One potential legislative launching pad for the senators could be a rough framework worked out by Sinema and Tillis in December to couple a “Dreamers” bill with increased resources for border security — giving incentives to both Republicans and Democrats.

The much-discussed but closely guarded plan included greater investment in Border Patrol personnel, routing asylum-seekers to declare themselves at ports of entry, extending the pandemic-era Title 42 health provision that allowed immediate expulsion of asylum-seekers and providing a pathway to citizenship for childhood arrivals. The framework grew from Cornyn’s own proposed legislation in 2021 with Sinema and Reps. Tony Gonzales, R-San Antonio, and Henry Cuellar, D-Laredo, which never made it past the committee level. The framework is still in the works, and Cornyn is keeping an open door to other options.

U.S. Sen. John Cornyn and other senators served dinner to law enforcement agents (DPS, DHS, EP Sheriff & EPPD) for National Law Enforcement Appreciation Day, Monday, Jan. 9, 2023, in El Paso.
Cornyn and other senators serve dinner to local law enforcement officers in El Paso on Jan. 9 for National Law Enforcement Appreciation Day. Credit: Ivan Pierre Aguirre for The Texas Tribune

Cornyn and Sinema said their counterparts in the House have expressed interest in passing a deal with this Congress focusing on border security, which the pair said they would build on to include protections for DACA recipients and new pathways for legal immigration once it reaches the upper chamber. Those DACA concessions will be essential for buy-in from the Democratic-controlled Senate. Sinema said Gonzales was the first House lawmaker she contacted on her framework with Tillis, and Cuellar and Sinema have also been in contact on the deal.

Cornyn and Sinema also have a well-established working relationship that was put to the test over negotiations on last year’s bipartisan gun safety law, which enhanced background checks and gave states more money for crisis intervention. Sinema and Murphy worked with their fellow Democrats to bring them on board with the legislation, with Cornyn partnering with Tillis to rally Republican support.

“I’ve been able to work with Sen. Sinema on a number of things that people said, ‘Well, you can’t do that and it’s not possible, you can’t get it done,’ — and lo and behold, Sen. Sinema has done perhaps more than most people I can think of to actually find solutions to those problems,” Cornyn said. “I mean, the other alternative is we do nothing, and nobody believes the status quo is acceptable.”

U.S. Senator John Cornyn (R-Texas) listens during a roundtable discussion between seven other Senators and officials from the City of El Paso, local non-profits, law enforcement officials, business and other stakeholders, Monday, January 9, 2023, in El Paso, Texas.

James Lankford, R-OK; Chris Coons, D-DE; Cornyn; Kyrsten Sinema, I-AZ; James Lankford, R-OK
Cornyn and Kyrsten Sinema, I-Ariz., listen during a roundtable discussion Jan. 9 in El Paso with other senators, officials from the city, representatives from local nonprofits, law enforcement officials and other stakeholders. From left: U.S. Sens. James Lankford, R-Okla.; Chris Coons, D-Del.; Cornyn; Sinema; and Lankford. Credit: Ivan Pierre Aguirre for The Texas Tribune

The Senate border tour included stops in El Paso and Yuma, Arizona, and was meant to show their seriousness in reaching a substantive deal. The senators heard from humanitarian aid workers urging for more resources to handle the influx of migrants and Border Patrol agents overworked and facing low morale from what they say is sparing federal support. The senators were largely reserved, focusing instead on diagnosing the situation and figuring out legislative needs, refraining from using familiar Republican attacks like accusations of a “Biden border crisis.”

The desire for action on the border appears to be growing within the White House as well. Biden was in El Paso the previous day at the invitation of Rep. Veronica Escobar, where he stopped by the border wall on his way to a North American leaders summit in Mexico City in a trip planned separately from the Senate border visit.

It was a considerable nod by the president toward the issue that national Democrats had largely left on the backburner over the past two years as they zeroed in on passing generational investments in infrastructure and clean energy. U.S. Customs and Border Protection meanwhile reported record numbers of apprehensions at the border during that time, surpassing 2 million in the 2022 fiscal year and opening the door for Republicans to go after Democrats as asleep at the wheel.

“They need a lot of resources. We’re going to get it for them,” Biden said during his visit.

There is also growing concern among immigrant rights activists that the clock is ticking for “Dreamers” after a federal appeals court blocked future applicants last fall. With Democrats losing control of the House this year, many immigration activists feared the best window for getting legislation to protect DACA recipients was largely closed. The House passed the American Dream and Promise Act to protect DACA recipients in March 2021, only for it to fizzle out in the Senate. Over 100,000 DACA recipients live in Texas.

The impossible task

Congress’ record is littered with dashed hopes for a comprehensive border and immigration package. As recently as this December, Democratic leaders in the Senate were hopeful for a deal that would at the very least give DACA recipients some certainty to their status. Members in both chambers waited earnestly to see if the Sinema-Tillis framework could materialize into something before Republicans took control of the House and pushed a more punitive approach to immigration and the border.

But December was bogged down with marathon negotiations to get a $1.7 trillion spending package across in order to keep the government funded for the rest of the fiscal year. Cornyn had little optimism at the time that any immigration and border security package would see passage with such a tightly crunched calendar. By the time both chambers gaveled out for the holidays, no bill text on an immigration deal was ever typed out.

The path forward in the new Congress is not much clearer. The Republican-controlled House is several steps to the right of Senate Republicans, particularly after the acrimonious House speaker elections that led to Speaker Kevin McCarthy making numerous promises to the far-right wing of the party. The bitterness was on display during negotiations for December’s government spending package, which passed with bipartisan support in the Senate but met fierce opposition from House Republicans, who viewed it as a waste of money.

Rep. Chip Roy, R-Austin, vowed to object to any bills brought on by Senate Republicans who voted for the package — which could make things harder for Cornyn to get an immigration deal with his blessing passed in this House, given his vote in favor of the spending bill. Several of Roy’s peers signed on to the pledge, including then-speaker-candidate McCarthy. If the members stay true to their threat, a bipartisan immigration and border deal could be completely off the table.

Cornyn, however, is undeterred, waving off the threats as a load of hot air.

“Hopefully, those were just statements made in a moment of frustration,” Cornyn said. “To me, that’s not a very responsible position.”

Roy’s office did not offer a comment on Cornyn’s remarks, and he did not respond to a text message requesting comment. Roy introduced his own legislation last week that would give the secretary of Homeland Security the power to completely bar entry to migrants if he deems it necessary to secure the border.

Cornyn is urging his House counterparts to not get too carried away. In an interview in El Paso, Cornyn said House Republicans “have to recognize the reality of a 60-vote requirement in the Senate” if they are serious about tackling the issue.

“And the only way you do that is to have a bipartisan product,” he said.

But most House Republicans have not shown signs of a willingness to compromise.

Late last year, all Republican members of Texas’ House delegation unveiled a border plan that focuses on building physical walls, cutting down on asylum claims, deporting undocumented immigrants and aggressively prosecuting cartels. Punishment and deterrence are their key principles in preventing illegal crossings, with little urgency for reforming legal immigration pathways. It is so far the most comprehensive plan the conference has put forward for the current session.

It’s already a nonstarter for most Democrats. Escobar dismissed the plan as more of the old playbook, failing to get at the root of the issue. She said further enforcement of immigration laws without expansion of legal pathways for entry and investment in the countries of origin will simply overwhelm holding facilities.

“We don’t even have enough money to build the space that we need. So it’s not even a realistic option,” Escobar said in a brief interview shortly after welcoming Biden to El Paso. “I appreciate that they’re talking about solutions, but I’m interested in real solutions.”

Escobar stressed to Biden the need for diplomatic attention toward Latin America in order to prevent the instability driving refugees to the United States. The United States’ relatively muted interest in its own hemisphere has long been a critique of the Washington foreign policy community.

The Biden administration announced a plan earlier this month to allow 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela each month to work in the U.S. for up to two years, but they would need to apply from their home countries. The plan also extends Title 42, much to the chagrin of immigration activists who assert it drastically limits opportunities for claiming asylum. But Republicans asserted removal of the measure would open the doors to an influx of migrants the nation was wholly unprepared for.

A city’s limits

During the senators’ visit, Brandon Judd, president of the National Border Patrol Council, guided the visiting lawmakers to a vantage point atop a repurposed garbage dump in the desert. Below, the lights of El Paso competed with the light of Ciudad Juárez, bisected by a long, steel wall. The cities faded into desert before reaching where the senators stood — a large patch of wilderness that Judd explained had become the nation’s biggest hot spot for unapprehended border crossings.

Once caught, migrants have to be driven back into town to be processed, leaving fewer agents to man the wall. Each person takes over an hour to process, depending on their case.

“Border Patrol agents were not supposed to deal with asylum,” Judd explained to the senators, who looked out into the cold desert dotted with Border Patrol vehicles roving the area. “And when we do, it takes our agents out of the field, and then we get beat.”

Many of the migrants who never get processed for an asylum claim and are never apprehended by Border Patrol remain truly undocumented. They find themselves on the freezing streets in their first nights in the country, fearful to go to government-run shelters. Charitable groups and nonprofits also find themselves concerned about prosecution for helping migrants, with Abbott threatening probes into whether nonprofits are helping migrants cross illegally.

“We’re not in the smuggling business,” said Mark Seitz, bishop of the Diocese of El Paso, who has been actively engaged in humanitarian efforts in the city. “We just don’t want anyone to die on our streets.”

Following large waves of migrants last month, capacity at shelters in El Paso started reaching its limits, prompting the city to open new facilities. One is at the retired Bassett Middle School, where the senators met with community leaders and law enforcement and saw where migrants were being housed before going on their border tour.

The orchestra and band classrooms are converted into dormitories with cots. The library has a play area for young children. Migrants get three hot meals per day in the cafeteria, still decorated with school slogans and banners extolling “achievement, discipline, respect, excellence.”

A migrant man cleans the area outside Sacred Heart Church, Monday, Jan. 9, 2023, in El Paso. Many migrants are afraid to leave or venture off too far from the church because they are afraid they will be detained by CBP.
A man cleans the area outside Sacred Heart Church on Jan. 9 in El Paso. Credit: Ivan Pierre Aguirre for The Texa

But for others who have nowhere to go, many have found themselves on streets or at the steps of Sacred Heart Catholic Church. In the weeks before Biden’s visit, the streets outside the church were filled with the tents and blankets of migrants escaping the cold desert nights. Their presence was drastically reduced by the time of the tours, but there was still the detritus of makeshift outdoor living strewn about the area.

“We need an immigration system that is safe, orderly and humane and legal,” Cornyn said. “Because right now, this mass of humanity coming across the border is not entering the country through a safe, orderly, humane or legal process.”

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