How Biden’s power to turn away migrants at the border would work under the Senate deal

A central piece of the Senate’s bipartisan border deal is a new authority for the administration to close the border to most migrants in certain circumstances.

Proponents of the bill say it would cut in half the number of migrants being allowed into the country, which is a top priority for Republicans, while not closing the border entirely, which is a top priority for Democrats.

But the provisions related to President Biden’s emergency authority at the border have become a key talking point among conservatives opposed to the border bill, who claim it would allow 5,000 migrants a day into the U.S. — a claim the bill’s architects vehemently dispute.

Here’s how President Biden’s border emergency authority would work:

When migrants can be turned away — and when they must be turned away

Once the number of migrant encounters at the southern border reaches a daily average of 4,000 for seven consecutive days, the secretary of Homeland Security would have “sole and unreviewable discretion to summarily remove from and prohibit … entry into the United States … any alien” who does not qualify for various exceptions.

This authority would not apply to an unaccompanied child or anyone an immigration officer determines — with the approval of a supervisor — should be exempted from expedited removal authority “based on the totality of the circumstances” such as public safety, humanitarian or public health interests.

A migrant who is determined to be a victim of “a severe form of trafficking in persons” would also be exempted.

Once the border emergency authority is triggered, the Homeland Security secretary would have the power to issue a summary removal order and remove the migrant to the country of which the person is a subject, national or citizen.

The activation of the emergency authority would be at the secretary of Homeland Security’s discretion as long as the daily average of migrant crossings remains below 5,000.

If during a period of seven consecutive calendar days the average of migrant encounters at the southern border reaches 5,000, the secretary of Homeland Security would be required to activate border emergency authority.

The secretary of Homeland Security would also be required to activate the emergency authority if the number of migrant encounters exceeds 8,500 in a single day.

Continued access to points of entry even when border is ‘closed’

Even if daily migrant encounters reach 4,000 or 5,000 per day and trigger emergency authority, the bill would not shut the border down completely.

The legislation says that during activation of such authority, the secretary of Homeland Security “shall maintain the capacity to process … a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border points of entry.”

Sen. Chris Murphy (Conn.), the lead Senate Democratic negotiator of the deal, noted in a post on X, the platform formerly known as Twitter, that “the border never closes” under the proposal but “claims must be processed at the ports” of entry when more than 5,000 people on average cross the border a day.

Asylum-seekers will be subject to stricter processing

The asylum-seekers who do cross the border before the emergency authority kicks in would not simply be released into the country. Rather, they will be subject to screening and processing.

The border deal also raises the initial screening standard for an asylum claim, seeks to streamline the process of verifying a claim and largely ends humanitarian parole — or what critics call “catch and release” — while cases are being adjudicated. 

Sen. James Lankford (Okla.), the lead Republican negotiator, said the tougher asylum standard set by the bill is designed to “make an enormous difference in the number people who come across.”

He said the evidentiary standard for migrants seeking asylum will be raised, and there will be three different eligibility thresholds added to weed out illegitimate claims.

Migrants who fail to pass the expedited asylum screening process will be detained or deported.

Limitations on border emergency authority

The enhanced border authority would sunset after three years, and the secretary of Homeland Security would be limited in how many days per calendar year he or she could activate his or her emergency authority to remove migrants.

During the first year of enactment, the secretary would not be permitted to activate the border emergency authority for more than 270 calendar days.

During the second year after the enactment date, the secretary would not be permitted to activate the emergency authority for more than 225 calendar days.

During the third and final year of the program, the secretary would not be permitted to activate the emergency authority for more than 180 calendar days.

The secretary would be required to implement the emergency authorities within 24 hours after they are activated.

The Homeland Security secretary would be required to suspend emergency border authority and the procedures under its auspices when migrant encounters fall to 75 percent of the level that triggered activation for 7 consecutive days.

Biden could suspend border emergency authority if in the national interest

Another key limitation of the enhanced authority to remove migrants once certain thresholds are met is that Biden or a future president could suspend it for a period of 45 days if he or she finds it “in the national interest.”

Daily tallies used to trigger emergency authority would exempt certain migrants

The daily tallies of migrant encounters that would be used to activate the secretary of Homeland Security’s emergency authorities would not include unaccompanied children from countries other than Mexico and Canada.

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