A central part of the Senate’s bipartisan border deal would give the administration new authority to close the border to most immigrants under certain circumstances.
Supporters of the bill argue that while it would cut the number of immigrants admitted in half, a top Republican priority, it would not completely close the border, a top Democratic priority.
But President Biden’s border emergency powers provision has become a key point of contention among conservative opponents of the border bill, which they say would allow 5,000 immigrants a day to enter the United States. The bill’s authors vehemently dispute this claim.
Here’s how President Biden’s border emergency authority will work.
When can and should immigrants be turned away?
If the number of migrant encounters at the southern border reaches an average of 4,000 per day for seven consecutive days, the Secretary of Homeland Security will have “sole and non-reviewable discretion to immediately exclude and prohibit entry into the United States.” These exceptions do not apply.
This authority is overseen by immigration officials who say unaccompanied children should be exempt from emergency removal powers “based on the totality of the circumstances,” such as public safety, humanitarian or public health interests. It does not apply to those who have received government approval.
Migrants determined to be victims of “serious forms of human trafficking” are also exempt.
Once border emergency authorities are activated, the Secretary of Homeland Security will have the authority to issue immediate removal orders and expel immigrants to their subject, national, or country of citizenship.
Activation of emergency authorities would be at the discretion of the Secretary of Homeland Security as long as the average number of migrants crossing each day is below 5,000.
The Secretary of Homeland Security would be required to invoke border emergency powers if the average number of migrants encountered at the southern border during seven consecutive calendar days reaches 5,000.
The Secretary of Homeland Security would also be required to use emergency powers if the number of migrant encounters exceeds 8,500 in a day.
Access to entry points continues even when borders are “closed”
The bill would not completely close the border, even if the number of migrant encounters reached 4,000 or 5,000 per day and emergency authorities were activated.
The law provides that while such authority is in effect, the Secretary of Homeland Security may “process at least 1,400 cumulatively inadmissible aliens per calendar day across all land border points of entry in the Southwest.” “We must maintain the ability to do so.”
Sen. Chris Murphy (Connecticut), the lead Senate Democratic negotiator for the deal, said in a post on “No,” but “claims must be processed at the border.” A port of entry where an average of more than 5,000 people cross the border each day.
Asylum seekers will be subject to stricter processing
Asylum seekers who cross the border before emergency authorities are activated will not simply be allowed into the country. Rather, they are subject to review and processing.
The border deal also raises initial screening standards for asylum applications, streamlines the application verification process, and nearly eliminates humanitarian parole pending trial, or what critics call “catch and release.” That’s what I’m aiming for.
Sen. James Lankford (Oklahoma), the lead Republican negotiator, said the bill’s stricter asylum standards are intended to “make a huge difference in the number of refugees.”
He said the standard of proof for immigrants seeking asylum would be raised and three different eligibility criteria would be added to weed out unreasonable claims.
Immigrants who fail the expedited asylum screening process are detained or deported.
Limits on border emergency powers
The enhanced border powers will be repealed after three years, and the Secretary of Homeland Security will be limited to the number of days per calendar year that he can use emergency powers to remove immigrants.
In the first year of enactment, the Secretary was not allowed to use border emergency powers for more than 270 calendar days.
For the second year after the date of enactment, the Secretary would not be able to invoke emergency powers for more than 225 calendar days.
In the third and final year of the program, the secretary was not allowed to invoke emergency powers for more than 180 calendar days.
The Secretary is required to activate emergency authorities within 24 hours after they are activated.
The Secretary of Homeland Security would be required to suspend emergency border control powers and procedures under his jurisdiction if encounters with migrants drop to 75% of the trigger threshold for seven consecutive days.
Biden could suspend border emergency officials if it is in the national interest
Another important limitation of the enhanced power to remove immigrants if they meet certain criteria is that Biden or a future president can suspend that power for 45 days if he or she deems it is “in the national interest.” .
Daily tally used to trigger emergency authorities exempts certain immigrants
The daily tally of migrant encounters used to trigger the Secretary of Homeland Security’s emergency authorities does not include unaccompanied children from countries other than Mexico and Canada.
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