A new Senate immigration bill allows the Biden administration to bar most migrants from seeking asylum if unauthorized immigration at the border reaches a specific number a day.
The bill is sponsored by Sen. James Lankford, R-Okla., Sen. Kyrsten Sinema, I-Ariz. and Sen. Chris Murphy, D-Conn. But it’s facing a tough outlook in the House, where Republican leaders pledged it will not get a vote because it would “incentivize” more illegal immigration.
“Here’s what the people pushing this ‘deal’ aren’t telling you: It accepts 5,000 illegal immigrants a day,” said House Majority Leader Steve Scalise, R-La., in a Feb. 4 X post.
But that’s not what the bill does.
The bill raises the legal standard to pass initial asylum screenings, expedites the asylum process and funds additional detention space. It also compels the Homeland Security secretary to use an emergency authority to bar people from requesting asylum if officials record 5,000 encounters a day over seven consecutive days. But that’s not the same as accepting 5,000 people into the U.S. daily.
“This is one of the most widely mischaracterized provisions in the Senate bill,” said Michelle Mittelstadt, the nonpartisan Migration Policy Institute’s communications director. “The legislation would not allow for the entry of ‘5,000 illegal immigrants a day.’”
The bill’s Republican, Independent and Democratic sponsors have all pushed back against Scalise’s characterization.
5,000 encounters at the southern border would trigger emergency authority
The Emergency National Security Supplemental Appropriations Act of 2024 changes immigration law to let the executive branch quickly stop people from coming in through U.S. borders and prevent them from applying for asylum under certain conditions.
The bill allows the Homeland Security secretary to exercise this authority if there are an average of 4,000 daily encounters at the southern border during seven consecutive days.
And the bill requires the Homeland Security secretary to exercise this authority if there are:
- An average of 5,000 encounters a day during seven consecutive days, or
- 8,500 encounters on any single day.
In December 2023, the latest month with available data, there were 302,034 encounters at the southern border. The daily average of 9,743 encounters would have triggered the emergency authority.
Presidents Donald Trump and Joe Biden used a similar authority, Title 42, to mitigate COVID-19’s spread and quickly expel migrants at the border. But that policy could be used only during a public health emergency.
This is not the same as letting in 5,000 people a day
The encounters-based trigger doesn’t mean the U.S. is allowing “5,000 illegal immigrants” to enter the U.S.
“This is not a number that is ‘allowed in.’ It is a threshold of ARRIVALS that triggers a new authority,” wrote Theresa Cardinal Brown, the Bipartisan Policy Center’s senior adviser for Immigration and border policy, in an email.
Encounters track the number of times immigration officials stop people trying to enter the U.S., not the number of people who are released into the country.
“There is this idea that we control how many migrants attempt illegal crossings. We do not,” Brown said. “We control what happens once we encounter someone who has already crossed the border illegally.”
The emergency authority would change what happens when people try to cross the border. But the bill doesn’t allow people to just come in without any application of immigration law.
“Once that trigger is activated,” Mittelstadt said, “no one crossing the border between ports of entry would be eligible to be considered for asylum.”
How immigration law works today and what the emergency authority would change
Under current immigration law, someone who tries to illegally enter the U.S. can be quickly removed without going to immigration court unless that person signals “an intention to apply for asylum,” Brown said.
However, even when people don’t seek asylum “we don’t just ‘turn them back,’” she said. Instead, border officials take migrants into custody and try to find them in U.S. databases, check their background checks to identify any threats and then try to deport them, she said.
Mexican migrants can quickly be sent back to Mexico. However, if Mexico doesn’t agree to receive people from other countries, the U.S. keeps them in custody until deportation to their home countries can be arranged.
However, limited resources — not enough border officials, detention space or immigration judges — results in some people being released into the U.S. to determine later whether they can stay, Brown said.
The emergency authority would temporarily circumvent that process. Even then, Brown said, the authority’s effectiveness will hinge on available resources and Mexico’s cooperation.
“In short, there is no authority that Congress could pass that would allow for a ‘complete and total shutdown of the border,’” Brown said. “That’s just not how borders work in any real sense. Especially not our border with Mexico.”
Our ruling
Scalise said the Senate’s border bill “accepts 5,000 illegal immigrants a day.”
The bill directs the Homeland Security secretary to stop people from coming in and to deny them from applying for asylum if there are an average 5,000 migrant encounters at the southern border over seven days.
But that doesn’t mean that 5,000 people would be let in each day before then. A person can be encountered and not let into the country. The encounters data tracks how many times officials stop migrants, not how many are let in.
Before the emergency authority is triggered, immigration law will continue to be enforced with a higher standard for asylum interviews, a faster adjudication process and increased detention space.
The number of encounters triggers the emergency authority, and the authority changes what happens when people try to cross the border. The bill does not allow any number of people to illegally cross the border.
We rate the claim False.
This fact check was originally published by PolitiFact, which is part of the Poynter Institute. See the sources for this fact check here.
