A bipartisan group of senators has cut a deal that would effectively shut down the border if crossings exceed certain levels as Border Patrol struggles to handle a record influx of illegal immigrants.
The proposal, part of a border bill expected to be released in the coming days, would grant the Biden administration a new expulsion authority if average migrant encounters exceed 4,000 a day across a one-week window, according to a source familiar with the negotiations.
If crossings exceed 5,000 daily per week or 8,500 in a single day, the authority would be triggered automatically, with the Department of Homeland Security forced to turn away immigrants with limited exceptions.
The deal, negotiated by Sens. Kyrsten Sinema (I-AZ), James Lankford (R-OK), and Chris Murphy (D-CT), has been crafted as part of a broader spending bill that would provide new security assistance for Ukraine, Israel, and Taiwan.
Linking money for Ukraine to the border, one of the most politically charged issues in Congress, was viewed as a gamble by Senate leadership but necessary to satisfy conservatives in the Republican-led House.
Speaker Mike Johnson (R-LA) has already called the emerging Senate compromise “dead on arrival” in the lower chamber but has simultaneously kept the door open to negotiating. Should the border proposal pass the Senate, its fate could depend on additional concessions Johnson is able to extract from the White House.
The conservatives opposed to the Senate border deal have characterized the agreement, the contents of which have been shared with senators in recent days, as greenlighting a certain level of illegal immigration because of its thresholds.
The source rejected that characterization, noting the benchmarks are tied to when U.S. Customs and Border Protection becomes overwhelmed and are intended to approximate the available detention space.
Under the deal, asylum claims would be adjudicated in detention or, for those who cannot be detained, such as family units, authorities would accept or reject the asylum claim within six months of apprehension.
It can take several years to adjudicate claims under the current system.
The border proposal would also tighten asylum standards, the source confirmed to the Washington Examiner.
The expulsion powers granted to the president are similar to Title 42, the authority former President Donald Trump relied upon to turn away immigrants during the COVID-19 health crisis and that President Joe Biden ended last year.
The new powers come with a penalty for repeat offenders, barring immigrants caught attempting to cross the border twice from entering for a year.
Biden alluded to that authority in a statement released Friday evening that effectively endorsed the proposed compromise.
“It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed. And if given that authority, I would use it the day I sign the bill into law,” he said.
If the border were to be closed under the proposal, it would remain shut until encounters drop below 75% of the trigger number.
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Senate Minority Leader Mitch McConnell (R-KY) had sown doubts about the fate of the legislation this week given the political headwinds at play. Trump, running for a second term in the White House, opposes the current Senate effort and has urged Republicans to reject anything less than a “perfect” deal.
But McConnell reiterated to his conference on Thursday his support for a border-Ukraine deal.
