The Senate’s bipartisan $118 billion border security and foreign aid package includes a stipulation that unaccompanied minors not originally from Mexico would not be included in the total number of migrant encounters tallied in the 5,000 weekly average that triggers emergency authority to shut down the border. 

American First Legal, a conservative group, brought attention specifically to pages 212 and 213 of the package on X. 

“The new ‘break glass’ emergency authority is a disaster. The Secretary ‘may’ use it if there are 4,000 or more aliens encountered each day (28k per week, 121k a month, 1.46 mil a year). But he ‘must’ use it when there are more than 5,000 a day over a week or 8,500 in a single day. Those are insane numbers and totally unacceptable to the American people,” the group wrote. 

“And Non-Mexican UAC are NOT counted in the total that triggers the emergency authority,” they added.


Migrant children cross by Eagle Pass Texas

An aerial view shows migrants, including children, walking next to razor wire after crossing the Rio Grande at sunset in Eagle Pass, Texas, on Feb. 4, 2024. (Lokman Vural Elibol/Anadolu via Getty Images)

At a seven-day rolling average of 5,000 encounters per day, or 8,500 encounters in a single day, the Department of Homeland Security must use “mandatory activation” and is required to shut the border down and turn away anyone who crosses, according to the legislative proposal. No new asylum claims would be allowed, and anybody crossing would be removed, putting an end to the notion that any migrant who makes it onto U.S. soil would need to be processed. Under the bill, Border Patrol would not process illegal border crossers, and they would be removed.

The average for the applicable seven-day period shall be calculated using the sum of the number of encounters that occur between the southwest land ports of entry of the United States and the number of encounters that occur between the ports of entry along the southern coastal borders, and the number of inadmissible aliens encountered at a southwest land border port of entry. However, page 213 lists the limitation that aliens described in subsection (a)(2)(C) from “noncontiguous countries shall not be included in calculating the sum of aliens encountered.” 

Subsection (a)(2)(C), as described previously on page 206, applies to exceptions for use of border emergency authority for “an unaccompanied alien child.” 

Unaccompanied minor crosses Texas border

An unaccompanied minor gets into a Border Patrol van near the highway on Feb. 4, 2024 outside Eagle Pass, Texas. (SERGIO FLORES/AFP via Getty Images)


Under the legislative proposal, no asylum claim would be permitted after the 5,000 weekly cap, unless it is made at a legal port of entry. The proposal partially ends catch and release. Single adults would be detained, but families and unaccompanied minors would be released via ATD (alternatives to detention), and asylum cases would be fast tracked to months rather than years under a new rapid/expedited expulsion system. Those who fail would be quickly removed from the U.S., according to the legislative package. 

Those who initially pass would be released with work authorization and 90 day supervision until a final asylum claim is determined. The shutdown authority would not drop until crossings decrease significantly in the days following the shutdown. 

Border crossers stopped in Arizona

U.S. Customs and Border Protection agents instruct migrants to separate important personal items from items to be discarded at a field processing center near the U.S.-Mexico border on Dec. 8, 2023, in Lukeville, Arizona. (John Moore/Getty Images)

The bill says no unaccompanied minors can be removed, and some of these minors will receive attorneys, either pro bono or taxpayer-funded. There is also a provision in the bill that would allow the president to suspend the “shut down” authority for up to 45 days if deemed best for national interest.

The long-awaited national security supplemental earned swift criticism from mainly House Republicans, with House Speaker Rep. Mike Johnson declaring the package “dead on arrival.”


“The Senate bill is awful! America, read from pages 212 to 217, and you will see why,” Rep. Byron Donalds, R-Fla., wrote on X. “There have to be 41 Republican Senators who will say NO to this monstrosity. @SpeakerJohnson, this bill should never get a vote in the House!”

Fox News’ Bill Melugin contributed to this report.

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