The bipartisan border deal would not allow 5,000 illegal crossings per day, despite what Trump says

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WASHINGTON — Former President Donald Trump, House Speaker Mike Johnson and other right-wing Republicans say they oppose a bipartisan immigration deal because it would allow 5,000 migrants to illegally cross the southern border every day.

“It is illegal to cross our border. But apparently, we’re concocting some sort of deal to allow the president to shut down the border after 5,000 people break the law," Johnson, R-La., said last month before the text had been released. "Why is it 5,000? If you add that up, that’d be a million more illegals into our country every year before we take remedial measures. It’s madness. We shouldn’t be asking what kind of enforcement authority kicks in at 5,000 illegal crossings a day, because the number should be zero.”

Trump made a similar claim to reporters: "That’s a terrible bill. Five thousand a day? That’s a lot. That’s, like, record-setting stuff."

But that's not actually what the bipartisan deal released on Feb. 4 would do. Here's what we know:

Migrants would not just be released into the U.S.

Migrants would not be able to just cross the border illegally under the new bill. It would end the practice of "catch and release," in which Border Patrol agents release migrants into the U.S. while they await immigration hearings.

Instead, migrants who tried to cross the border illegally would be detained immediately, with their asylum claims decided while they were in detention. People would be removed immediately within 15 days if they failed their asylum claim interviews.

The bill does provide exceptions from detention for unaccompanied minors and families even if they cross the border illegally between ports of entry. But those migrants would be placed under community supervision; what that looks like would be at the discretion of the Department of Homeland Security.

What about migrants who try to cross legally with asylum claims?

If the deal were to become law, migrants who come to the U.S. border at official ports of entry would be diverted to a new "removal authority program" in which they would have 90 days to make their initial asylum interviews. Those migrants would not be released into the interior of the U.S., either; they would either be detained or kept under government supervision.

If they failed their initial asylum interviews, they would be removed immediately.

But migrants who passed the asylum interview would get to stay in the country for an additional 90 days until their asylum cases were decided. In the meantime, they would receive work authorizations while they await adjudication of their cases. If their cases succeed, they would qualify for a path to citizenship.

So where did this 5,000-a-day figure come from?

The bipartisan deal does include provisions that would shut down the border entirely if a certain threshold is hit, but those are border encounters, not crossings. As noted above, no migrants trying to enter the U.S. illegally would be allowed into the country unless they passed asylum interviews or were being held under government supervision.

Under the new immigration bill, the Department of Homeland Security could close the border if too many migrants were showing up with asylum claims. After negotiators conferred with the Border Patrol and officials at the Department of Homeland Security, they crafted the legislation to give DHS the authority to close the border if they reached a seven-day average of 4,000 or more border encounters. A seven-day average of 5,000 or more would mandate a border closure. If the number exceeded 8,500 in a single day, there would also be a mandatory border closure.

What happens if the border is closed?

If the border were shut down, at least 1,400 migrants per day who tried to enter at official ports of entry would still qualify to have their asylum claims considered. The rest would be turned away.

Migrants encountered between ports of entry would be immediately turned away. If the same person tried to cross twice when the border was shut down between ports of entry, the person would be barred from entering the U.S. for one year.

To reopen the border, crossings would need to slow to below 75% of the number that triggered the border closure for seven days. DHS would then have up to two weeks to slowly reopen the border based on capacity.

There would be a limit to how long the border could be shut down, to avoid abuse of the authority. For 2024, it would be capped at 270 days, but the number is designed to fluctuate year by year, as negotiators hope that migrant crossings would slow with the new law in place.

The threshold for asylum claims would remain unchanged

The legislation would make changes to the asylum interview process, but the actual threshold for having an asylum claim approved would not be impacted.

Instead, the bill would front-load some barriers to eligibility earlier in the interview process to weed out migrants whose claims do not qualify. The bill also places many asylum determinations in the hands of asylum officers rather than judges in the interest of expediency. Many progressives have decried that provision as a violation of due process for asylum seekers.

The bill is designed to discourage illegal crossings

Over time, negotiators believe, the legislation and ending the practice of catch and release would encourage migrants to seek asylum lawfully at ports of entry rather than try to cross illegally between ports of entry.

The bill would also raise the standard to seek asylum. And it would provide other resources for the border, including increasing detention capacity for migrants who were held pending asylum claims.

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