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Border ‘Shutdown’ Rule Is Optional, Loopholed, Temporary Distraction

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10 months ago

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The much-touted emergency border “shutdown” in the establishment’s Border Act will not be activated unless the president’s homeland security says so, says a clause buried deep in the 280-page bill.

The legal loophole can be seen on page 119:

Whenever the border emergency authority is activated, the Secretary shall have the authority, in the Secretary’s sole and unreviewable discretion, to summarily remove from and prohibit, in whole or in part, entry into the United States of any alien identified in subsection (a)(3) who is subject to such authority in accordance with this subsection.

The loophole converts the supposedly “mandatory” border shutdown into a conditional presidential policy option — that can only be activated when there are many more migrants than during the border emergency declared by President Donald Trump during his first term.

By raising the required numbers, and adding multiple exemptions, the legislation makes it far more difficult for a president to declare a border shutdown — which is the reverse of much media coverage during the last few days.

“This RINO-Dem immigration deal is really a mass amnesty that essentially locks in 2 million illegals per year,” said a tweet by Donald Trump Jr.

President Joe Biden and Homeland Security Secretary Alejandro Mayorkas arrive for a briefing on Sept. 29, 2022, in Washington. (AP Photo/Evan Vucci)

Advocates for the pro-migration legislation are touting the shutdown trigger because it is a dramatic phrase for President Joe Biden and journalists to broadcast and because it is what most Americans want.

“It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed,” Biden declared on January 26. “And if given that authority, I would use it the day I sign the bill into law.”

But the details of the legislation show that the “mandatory” trigger will rarely be pulled, discounts many migrants, will expire in three years, and will have no impact because the law also creates an entirely new fast-track, rubber-stamp asylum process that can put millions of economic migrants on a rapid “path to citizenship” and into voting booths by 2030.

The much-touted legislation declares on page 122:

(3) ACTIVATIONS OF AUTHORITY.—

‘‘(A) DISCRETIONARY ACTIVATION.—The Secretary may activate the border emergency authority if, during a period of 7 consecutive calendar days, there is an average of 4,000 or more aliens who are encountered each day.

(B) MANDATORY [emphasis added] ACTIVATION.—The Secretary shall activate the border emergency authority if—

‘‘(i) during a period of 7 consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day; or

‘‘(ii) on any 1 calendar day, a combined total of 8,500 or more aliens are encountered.

But on page 117, the text lists exceptions to the “mandatory” trigger, including a catch-all — “a process approved by the Secretary” exemption:

(C) An unaccompanied alien child.

(D) An alien who an immigration officer determines, with the approval of a supervisory immigration officer, should be excepted from the border emergency authority based on the totality of the circumstances …

(F) An alien who has a valid visa or other lawful permission to enter the United States, including— … (iv) an alien who presents at a port of entry pursuant to a process approved by the Secretary to allow for safe and orderly entry into the United States.

Section (F) would exempt the “parole” migrants that Biden’s deputies are importing despite the existing laws.

In 2023, Biden’s deputies imported one million parole migrants who would not be covered by the border shutdown.

Biden has also imported more than 500,000 “Unaccompanied Alien Children” who would not be covered by the shutdown trigger.

Asylum seekers walk along the U.S.-Mexico border barrier on their way to be processed by U.S. Border Patrol agents on November 30, 2023, in San Diego, California. (Qian Weizhong/VCG via Getty Images)

Another paragraph on page 124 says migrants “from noncontiguous countries shall not be included in calculating the sum of aliens encountered.” That loophole ensures that only migrants from Canada and Mexico may count towards the 5,000 per day trigger.

And on page 119, the legislation allows the border chief — currently Secretary of Homeland Security Alejandro Mayorkas — the “sole and unreviewable discretion” to ignore the clause, even when the inflow rises way beyond 5,000 or 8,500.

More importantly, the new bill creates an asylum corps that has the authority to quickly provide migrants with green cards, even without facing a trained judge in the nation’s independent asylum courts. The legislation also provides money to hire more than 4,000 asylum officers, likely from the growing array of investor-funded pro-migration advocacy groups.

A summary issued by supporters of the bill says:

Sec. 3141. Provisional noncustodial removal proceedings.

• Creates Sec. 235B within the Immigration and Nationality Act which establishes provisional noncustodial removal proceedings … to adjudicate asylum requests from the border.

…

• Grants an asylum officer authority to approve an application for relief [legal asylum] or protection during the protection determination if an applicant demonstrates, by clear and convincing evidence …

The Democrats’ chief negotiator, Sen. Chris Murphy (D-CT), touted the legislation, saying, “The border never closes,” adding:

[It contains] A requirement the President to funnel asylum claims to the land ports of entry when more than 5,000 people cross a day. The border never closes, but claims must be processed at the ports. This allows for a more a more orderly, humane asylum processing system.

Still, pro-migration Democrats, Republicans, and business groups really want to tout the trigger to mollify voters. For example, Sen. Kyrsten Sinema (I-AZ) told CBS:

So much has been talked about with the as you know, the number of 5000 people a day, right. We’ve all heard misinformation, and frankly, just kind of rumors, saying, well, the administration doesn’t have to shut down the border until you get to 5,000 crossers a day. That’s not true.

First of all, our [existing] law is catch and release. But when too many people approach the border, asking to come in seeking asylum, we’re now mandating that the government actually shut down the border if those numbers get to 5,000 a day, but we’re permitting the government to actually shut down the border when it only gets to 4,000 approaches a day. And the reason we’re doing that is because we want to be able to shut down the system when it gets overloaded.

The Republican face of the legislation, Sen. James Lankford (R-OK), is also touting the emergency authority, without noting the exemption or the secretary’s “sole and unreviewable” authority to not use the authority:

The Border Emergency Authority has been the most misunderstood or maybe just misrepresented parts of the bill. Some people have said it would mean 5,000 people a day are coming into the country every day. That is absurd and untrue.

The emergency authority is not designed to let 5,000 people in, it is designed to close the border and turn 5,000 people around.

But he also admits:

The Border Emergency Authority only lasts 3 yrs to force this Admin to shut down the border & to give time for the next POTUS to hire more agents & more officers. After three years, the emergency authority expires because we should have regained full control of our border by then



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