TITLE III: SECURING AMERICA. SUBTITLE A: BORDER EMERGENCY AUTHORITY. The Border Emergency Authority is a temporary, three-year mandate, that requires the immediate deportation of all aliens crossing the southern land border or the southern maritime border (Florida to California) once encounters reach a one-week average of 5,000 aliens a day. There is also a discretionary authority to close the border at an average of 4,000 aliens a day. The emergency closure of the border does not affect legal and orderly vehicle or pedestrian traffic through the ports of entry. When the authority is activated, all aliens are removed and not allowed to apply for asylum unless they have an orderly appointment at a port of entry for an asylum request. The ports of entry must remain open for orderly asylum requests, but no alien can make an asylum claim between ports of entry. The limited number of aliens that are screened for asylum through the port of entry are screened at the higher standard of evidence, under the additional bars to eligibility in the bill. Once the border emergency authority activates, all aliens are deported immediately each day until the total number of encounters drops at least 25% for seven consecutive days. Encounters include aliens at the port of entry, between the ports of entry and in the southern coastal waters (Florida to California). When the number of encounters has dropped at least 25%, DHS has up to 14 days turn off the use of the authority. This means that when the border closes, it will remain closed for three weeks or longer. To stop returns, any alien that crosses the border a second time after expulsion during the emergency authority will have a one-year immigration bar applied as a consequence. The authority begins the day after enactment of the bill. The three-year border emergency authority is designed to immediately stop the current high number of illegal crossings while the other aspects of the bill are fully implemented. As an example, in the first four months of FY 2024, more than 954,000 aliens were encountered crossing the southern border. The vast majority of the nearly one million aliens were released into the country to await an asylum screening or hearing sometime in the next ten years. All of the aliens who crossed the first four months of FY2024 were either given a work permit at the border the first day or they were told that they are eligible for a work permit if they apply for an asylum screening which will occur years in the future. If the border emergency authority was in place October 1, 2023, the total number of aliens who could have applied for asylum in four months would have been less than 200,000, the remaining 800,000 would have been deported immediately. Of the 200,000 orderly asylum requests through the port of entry, most would be adjudicated within a few weeks, with the vast majority of the applicants quickly deported under the elevated screening standard. No one would have received a work permit the first day of their arrival. Sec. 3301: Border Emergency Authority. • 244(a)(1): Vests the DHS Secretary with the Border Emergency Authority. • 244(a)(2): Exempts U.S. Citizens, legal immigrants, unaccompanied minors, and certain other populations from expulsion. • 244(a)(3): Applies the BEA to any illegal alien who crosses within 100 miles of the southwest land border of the United States and who has been present in the United States for 14 or fewer days. • 244(b)(1): Allows for the DHS Secretary to summarily remove illegal aliens under the Border Emergency Authority once it is activated. • 244(b)(2): Specifies the removal authority under which the DHS Secretary may summarily remove illegal aliens, unless such aliens clearly manifest a humanitarian need. (Modeled off of Title 42). This paragraph specifies the limited circumstances under which an alien who manifests a humanitarian need may be screened. • 244(b)(3): Specifies how the Border Emergency Authority is activated o (b)(3)(A): Specifies that the BEA may be triggered if the 7-day average of encounters is at or above 4,000 per day. o (b)(3)(B): Specifies that the BEA shall be triggered if the 7-day average of encounters is at or above 5,000 per day. o (b)(3)(C): Specifies that the BEA shall be triggered if CBP encounters 8,5000 aliens in one day. • (b)(4): Specifies the number of days in which the BEA may be triggered o (b)(4)(A): Specifies that UACs from noncontiguous countries are not included in the encounter levels under (b)(3). o (b)(4)(B): Specifies the following time periods for activation: ▪ (b)(4)(B)(i): Within the 1st year, the BEA may be activated for 270 days. ▪ (b)(4)(B)(ii): Within the 2nd year, the BEA may be activated for 225 days. ▪ (b)(4)(B)(iii): Within the 3rd year, the BEA may be activated for 180 days. o (b)(4)(C): Requires that summary expulsions occur within 24 hours of the exercise of the BEA. • (b)(5): Specifies how the BEA is de-activated and border processing returns to normal. o (b)(5)(A): If the authority is triggered by 4,000 or more encounters, the DHS Secretary can only deactivate the authority if the average daily encounter over the preceding 7 days was at or below 75 percent of 4,000. o (b)(5)(B): If the authority is triggered by 5,000 or more encounters, the DHS Secretary can only deactivate the authority if the average daily encounter over the preceding 7 days was at or below 75 percent of 5,000. o (b)(5)(C): If the authority is triggered by 8,500 or more encounters, the DHS Secretary can only deactivate the authority if the average daily encounter over the preceding 7 days was at or below 75 percent of 5,000. • (b)(6): Special rules regarding tolling of the number of days the BEA may be triggered. • (b)(7): Gives the President the authority to terminate the use of the BEA for not more than 45 days if there is a declared emergency warranting such termination. • (c)(1): Requires that, during the exercise of the BEA, DHS process 1,400 inadmissible aliens across U.S. southern border land ports. • (c)(2): Clarifies how the 1,400 inadmissible aliens are processed and calculated. • (d): Imposes a 1-year bar on any recidivist alien who crosses after being removed under the BEA. • (e): Savings clauses and rules of construction to further define the terms listed in this section. • (f): Prohibits judicial review of a summary removal order while the BEA is exercised and gives jurisdiction to the District Court for the District of Columbia to hear any challenges regarding the BEA. • (g): Allows for the BEA to go into effect immediately upon enactment. • (h): Specifies regulatory procedures for further implementation of this section. • (i): Definitions for terms used in this section.
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