An image of the U.S. Capitol building imposed over a border wall

Molly Butler / Media Matters

Research/Study Research/Study

Myths and facts surrounding the bipartisan border deal killed by Republicans and right-wing media

Written by Zachary Pleat, Charis Hoard & Audrey McCabe

Published

After relentless opposition from conservative media, former President Donald Trump, and House Republicans, GOP senators last week blocked a bill negotiated by some of their own to extract major immigration policy concessions from Democrats in exchange for security aid for Ukraine and other U.S. allies.

In the days and weeks leading up to the bill’s defeat, conservative media pushed multiple myths about the bill to stir up enough opposition to block it. These myths included false claims about the president’s existing authority to make immigration policy changes, the House GOP’s “messaging bill” on the border, changes to how asylum claims are processed in the bill, and new emergency powers to close the border.

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  • Myth: The president can just use existing laws to end unauthorized immigration and restrict asylum

    • Fox host Jesse Watters claimed President Joe Biden “doesn’t need any new powers” from Congress. Watters said: “He doesn't need any new powers. And why would he need new powers to shut the border down if it's secure? … They don't need any new powers from Congress.” [Fox News, The Five, 1/30/24]
    • Fox host Sean Hannity also declared that Biden “doesn’t need Congress” to change immigration policy. Hannity said that Biden “doesn't need Congress to do what Trump did, to give him and hand off to him the most secure border ever.” [Fox News, Hannity, 1/30/24]
    • Fox contributor Katie Pavlich: “Biden says the border bill will give him the authority to shut down the border when it becomes overwhelmed. He already has this authority and he’s refusing to use it.” [Twitter/X, 2/6/24]

  • Fact: Existing laws require the U.S. to grant asylum, and many of Trump’s executive immigration policy changes were ruled illegal or unconstitutional by federal courts

    • CNN anchor Brianna Keilar explained that Biden can’t restrict migrants from claiming asylum under current law. Speaking to Rep. Josh Brecheen (R-OK), Keilar noted that “the Immigration and Nationality Act of 1952 that you're talking about also says that people can come to the border and ask for asylum, even if they crossed into the U.S. without authorization. And if you're citing that bill, you should be very much aware of this, because this particular bill in the Senate side would change that.” Keilar also explained that “what you are calling for President Biden to do is something that former President Trump attempted and that a court found he couldn't do.” [CNN, CNN News Central, 2/6/24]
    • American Immigration Lawyers Association’s Ben Johnson: “The idea that the president could accomplish most or all of this through executive authority is just flatly wrong.” Johnson added: “By every measure, constructive solutions using executive authority alone just don’t exist in this particular moment.” The New York Times noted that “while it is true that there are some steps Mr. Biden could take without Congress, the idea that he has unfettered power to seal the country off is far too simplistic. The United States also has laws that require the government to consider asylum claims from people fleeing persecution. Any attempts to circumvent that would almost certainly face legal challenges.” [The New York Times, 2/5/24]
    • The Trump administration lost at least 25 court cases over his attempts to restrict immigration through executive action. According to a review by The Washington Post in 2019, Trump lost at least seven court cases over his “executive order that placed immigration-related conditions on federal funding to cities,” with cities winning “rulings declaring the conditions were likely to be illegal because they were not authorized by law. Some ruled unconstitutional the law invoked in support of the conditions.” Trump also lost at least four court cases over his failed attempt to cancel the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. The Post reported, “In addition to the DACA rulings, courts have ruled against elements of the Trump administration’s signature crackdown on illegal immigration, including limiting entry points for asylum seekers, revoking temporary protected status for immigrants from certain countries already living legally in the United States and family separation.” This totaled another 14 rulings against Trump, including three decisions against Trump’s Muslim ban before a revised version was upheld by the Supreme Court. [The Washington Post, 4/26/19]
    • The bill actually toughens the standard to claim asylum. NBC News reported: “The bill also raises the ‘credible fear’ standard during interviews for asylum claims, largely by front-loading consideration of whether migrants have disqualifying criminal histories, whether they lived safely in third countries before trying to cross into the U.S. and whether they could safely relocate within their own countries.” [NBC News, 2/4/24]

  • Myth: Biden can unilaterally reinstate Trump’s “Remain in Mexico” program to fix the border

    • Fox anchor Bret Baier repeatedly claimed that Biden could bring back Trump’s “Remain in Mexico” program through an executive order. [Media Matters, 2/8/24]
    • Fox host Greg Gutfeld: “Right now, without Congress, Biden could sign an executive order that brings back ‘Remain in Mexico,’ the simplest, most effective southern border policy we’ve had.” [Fox News, Gutfeld!, 2/5/24]
    • Hannity: With “one more stroke of the pen,” Biden “could reinstate the Trump policies that secured our border in the first place,” like “the 'Remain in Mexico' policy.” [Fox News, Hannity, 1/31/24]

  • Fact: Mexico has said it will not participate in the program again, and it was both inhumane and a failure

    • Mexico’s government announced in February 2023 that it will not participate in another program like “Remain in Mexico.” A statement from Mexico’s Foreign Ministry read: “Regarding the possible implementation of this policy for the third time, the Ministry of Foreign Affairs, on behalf of the Government of Mexico, expresses its rejection of the U.S. government's intention to return individuals processed under the program to Mexico.” [ABC News, 2/7/23]
    • The Department of Homeland Security explained that it cannot force asylum-seekers to wait for their hearings in Mexico without Mexico’s cooperation. Homeland Security spokesperson Marsha Espinosa explained in response to Mexico’s statement that “our ability to implement” Migrant Protection Protocols, the formal name for the “Remain in Mexico” program, “has always been contingent on the government of Mexico's willingness to accept returns under MPP.” [Reuters, 2/6/23]
    • ABC News explained that “Remain in Mexico” was ineffective at deterring unauthorized border crossings. ABC explained that the Trump administration implemented “Remain in Mexico” as “a deterrent to preempt invalid asylum claims. The protocols have been applied only to a small fraction of overall border crossers, undermining claims of MPP's effectiveness.” [ABC News, 2/7/23]
    • Only a tiny fraction of asylum applicants in the program have been successful in their cases, compared with a 50% success rate for people who stayed in the U.S. The Texas Tribune reported in June 2022 that researchers at Syracuse University found “between 2019 and 2021, less than 2% of completed MPP cases ended with a person being granted asylum. So far under the Biden administration, 27 people have been granted asylum under MPP. By comparison, 50% of cases of migrants already in the U.S. with an asylum case have won their case.” [The Texas Tribune, 6/30/22]
    • Human rights groups have reported that asylum-seekers forced into the “Remain in Mexico” program to wait out their hearings were put at high risk of crime, injury, and death. In June 2022, the Texas Tribune reported that “Human Rights First, a New York-based organization, recorded 1,544 cases of killings, rapes and kidnappings of migrants who were forced to remain in Mexico between MPP’s launch in January 2019 and January 2021, when the Biden administration initially suspended the policy.” More recently, Human Rights Watch wrote a January 18 letter urging the Mexican government against cooperating in any similar program, noting that “migrants who are expelled from the US to Mexico often suffer kidnapping, extortion, assault, and other serious abuses at the hands of criminal groups and corrupt officials.” [The Texas Tribune, 6/30/22; Human Rights Watch, 1/18/24]

  • Myth: The House Republicans’ H.R.2 bill would fix border security

    • Fox contributor and former acting ICE Director Tom Homan: “If the Democrats are serious, they really want to secure this border, they would accept H.R.2 and implement it.” [Fox News, America’s Newsroom, 1/8/24] 
    • The Washington Examiner claimed H.R.2 “offers hope for a beleaguered nation” against “the chaos at our southern border.” The article claimed that the House “has responded to the chaos at our southern border by introducing H.R. 2, the Secure the Border Act, which would prevent further abuse of immigration laws to usher in even more mass illegal immigration.” [Washington Examiner, 5/11/23]
    • Breitbart called the bill a “comprehensive border package” meant to “stop ‘invasion.’” The article stated that House Republicans are touting the bill as “the ‘strongest’ border package Congress has ever considered.” [Breitbart, 5/11/23]
    • Article III Project senior counsel Will Chamberlain claimed H.R.2 is a better alternative than the Senate bill to “secure the border.” Chamberlain wrote: “If the Senate is desperate to hand $60 billion to Ukrainian oligarchs and pensioners, they can pass HR2 and *actually* secure the border. Otherwise, they can take their garbage bill and shove it.” [Twitter/X, 2/4/24]

  • Fact: H.R.2 is an “unrealistic” messaging bill, not serious legislation

    • The National Immigration Forum’s analysis of H.R.2 found that its “enforcement-only focus and failure to address lawful pathways is deeply flawed,” calling the bill “unrealistic.” The analysis further explained: “The bill’s overarching focus on physical barriers and deterrence measures — but not increased numbers of asylum officers or immigration judges — presents a vision of the U.S.’s southern border where people fleeing violence and persecution would be quickly removed, without meaningful access to protection. Further, by interpreting ‘operational control’ through the circumscribed definition in the Secure Fence Act of 2006, the bill is predicated on an unrealistic standard that the U.S. must prevent all unauthorized crossings along a roughly 2,000-mile border.” The National Immigration Forum concluded: “It would not address what is driving the perception of disorder at the U.S.-Mexico border: our broken immigration system,” and that “an enforcement-only approach like this one will not provide U.S. officials with the infrastructure and resources they need to adequately respond.” [National Immigration Forum, 5/8/23]
    • American Immigration Council Policy Director Aaron Reichlin-Melnick posted that “HR2 was primarily a messaging bill not ever intended to become a law” and “there are some WEIRD things in there.” Reichlin-Melnick also noted that it mandates more detention and border walls but provides no funding for them, and the bill also “mandates the indefinite detention of toddlers.” [Twitter/X, 1/14/24, 1/30/24, 1/2/24]
    • Washington Post columnist Eduardo Porter noted that H.R.2 “doesn’t, in fact, offer funds for anything that might stop immigration” and contains unrelated right-wing red meat. Porter wrote: “Instead, it demands that the Department of Homeland Security ensure border agents get adequate religious counseling. While it doesn’t require the Border Patrol to be staffed entirely with anti-vaxxers, it does require DHS to ‘make every effort to retain Department employees who are not vaccinated against COVID-19.’” [The Washington Post, 2/2/24]
    • MSNBC producer Steve Benen wrote that H.R.2 is a “messaging bill,” meant to shape political debate as a performative measure rather than effective legislation. Benen also called the bill “unserious” and claimed that House Republicans are only “pretending” that it’s a “serious attempt at federal policymaking.” Benen concluded: “H.R. 2 was not, is not, a real bill, even if Republicans now prefer to pretend otherwise.” [MSNBC, 2/6/24]

  • Myth: The bill provides so-called “amnesty” for undocumented immigrants

    • “Pizzagate” conspiracy theorist Jack Posobiec theorized that “this border bill is clearly a setup for mass amnesty ahead of the elections.” [Twitter/X, 2/4/24]
    • The Federalist CEO Sean Davis repeatedly called the Senate deal an “amnesty bill.” [Twitter/X, 2/6/24, 2/5/24, 2/5/24, 2/5/24]
    • Fox host Mark Levin: “THE BIDEN-MCCONNELL BILL IS A FULL-ON AMNESTY BILL.” [Twitter/X, 2/5/24]

  • Fact: There is no path to legalization for undocumented immigrants included in the bill

    • NBC News reported that “the bill doesn't address the children of undocumented people, known as ‘Dreamers,’ long a priority of Democrats.” The only path for legalization included in the bill is for vetted Afghan refugees and their families, many of whom helped the U.S. during the 20-year war there. [NBC News, 2/4/24]
    • CNN: The bill doesn’t “provide a pathway to citizenship for undocumented immigrants.” CNN explained that “in a telling sign of how far the tides of turned since the beginning of the Biden administration, measures like the pathways to citizenship for undocumented immigrants he proposed in 2021 are nowhere to be found in this proposed legislation.” [CNN, 2/6/24]
    • Fox reported that the bill has a “lack of amnesty for illegals.” In its online report, Fox explained that the bill “upset many on the left, with immigrant activists saying it harms migrants without giving relief — including any form of amnesty for those in the country already, such as illegal immigrants who came to the country as minors and whom activists have named ‘Dreamers.’" [Fox News Digital, 2/5/24]

  • Myth: The bill doesn’t end so-called “catch and release”

    • Hannity: The bill “does not end catch and release, instead it just facilitates catch and release for certain populations.” [Premiere Radio Networks, The Sean Hannity Show, 2/5/24]
    • Levin echoed the same talking point as Hannity, saying: “It does not end catch and release. … Instead, it facilitates catch and release for certain populations.” [Westwood One, The Mark Levin Show, 2/5/24]
    • Former Trump adviser Stephen Miller on The Charlie Kirk Show: The bill “cements catch and release.” [Real America’s Voice, The Charlie Kirk Show, 2/5/24]

  • Fact: The bill mandates detention for many undocumented entrants and expedites removal for those who fail their asylum interviews

    • NBC News explained that the bill would “end the practice of ‘catch and release.’” NBC reported: “If passed into law, the bill would allow migrants who come to the border through lawful ports of entry and families to enter the U.S. under federal supervision for 90 days while they complete asylum interviews. Those who pass would receive work permits as they await adjudication of their claims. Those who fail would be removed from the U.S. and repatriated to their home countries or to Mexico.” It would also “mandate detaining migrants who try to enter the U.S. outside of official ports of entry, pending any asylum claims. Those who fail would also be removed.” Additionally, it “allocates funding for repatriation flights up to 77 per day.” [NBC News, 2/4/24]
    • Reuters: “The bill's proponents said it would end the controversial ‘catch-and-release’ practice … by speeding up the adjudication of asylum cases instead of quickly releasing apprehended migrants and allowing them to stay in the United States for years while they await hearings.” [Reuters, 2/5/24]
    • Cato Institute: Incarcerating every single unauthorized person who entered the U.S. would likely require “at least 1.5 million detention beds” and cost “about $129 billion per year, 16 times ICE’s total annual budget.” David Bier, the associate director of immigration studies at the Cato Institute, described incarcerating all unauthorized border crossers as “useless anti-immigrant theater.” The figure of 1.5 million people the Border Patrol “is on pace to release” — who conservatives instead demand be detained — exceeds the total U.S. prison population at the end of 2022 by several hundred thousand, according to the Bureau of Justice Statistics. [Cato Institute, 1/10/24; Bureau of Justice Statistics, 9/20/23]

  • Myth: The bill permits 5,000 unauthorized entries per day

    • Fox News correspondent Griff Jenkins: Anonymous “border officials” said the bill and its “5,000 trigger” would send “a message around the world that says, ‘Hey, come on over. We're letting in 4,999 a day.’ And that is the wrong message to send.” [Fox News, Fox & Friends, 2/5/24]
    • Townhall columnist Kurt Schlichter posted, “I don’t think the solution is to allow 5000 illegal aliens into the country a day. If that’s the solution, we disagree on the problem.” The post was in response to Senator Amy Klobuchar (D-MN) calling out Republicans for walking away from the bipartisan bill when “people want solutions, not political attacks.” [Twitter/X, 2/6/24]
    • Right-wing YouTuber Benny Johnson posted, “5,000 illegal immigrants per day is insane. Secure the damn border and make it zero.” [Twitter/X, 2/4/24]
    • Responding to Lankford on X (formerly Twitter), Trump loyalist and right-wing political operative Roger Stone posted: “FACT - Your ‘Border Security’ plan permits 5,000 illegal immigrants per day to enter the US. That's 155,000 illegal immigrants each month and an annual total of 1.8 million. Stop lying!” [Twitter/X, 2/5/24]

  • Fact: The 5,000 unauthorized entries per day is a weekly threshold to trigger an automatic denial of entry for all unauthorized entrants, and it would also trigger asylum restrictions

    • The bill includes a provision for “emergency authority” requiring the Department of Homeland Security “to prohibit entry for most individuals” if certain unauthorized crossing thresholds are reached, and it would “allow for summary deportations of migrants.” The Associated Press reported on “a provision in the bipartisan package that would grant the Homeland Security secretary emergency authority to prohibit entry for most individuals if an average of more than 4,000 people per day try to enter the country unlawfully over the course of a week. If the number reaches 5,000 or if 8,500 try to enter unlawfully in a single day, use of the authority would be mandatory.” The AP noted that “if the proposal were passed into law, the new authority could be triggered almost immediately, given that border encounters topped 10,000 on some days during December.” Bipartisan Policy Center immigration and border policy expert Theresa Cardinal Brown additionally told The New York Times that this emergency authority would “allow for summary deportations of migrants and deny them the chance to apply for any way to stay in the U.S. other than very limited circumstances.” [The Associated Press, 2/5/24; The New York Times, 2/5/24]
    • Only unaccompanied minors would be permitted to cross the border in between ports of entry and remain once the emergency authority is triggered, and all others would be barred for a year. NBC News reported: “During an emergency closure, Border Patrol would still need to process a minimum of 1,400 migrants who try to enter the U.S. legally through ports of entry. Only unaccompanied minors would be able to cross between ports of entry. And any migrant who tried to cross illegally two or more times during a border emergency would be barred from the U.S. for a year.” [NBC News, 2/4/24]
    • Under the emergency authority, migrants would be able to apply for asylum only at official ports of entry. Politico reported: “DHS would still consider asylum requests from people crossing at legal ports of entry during those periods of ‘border shutdown’ — just not in between those ports. Officials would have to process at least 1,400 asylum requests per day under those terms.” [Politico, 2/5/24]
    • Migration Policy Institute’s Michelle Mittelstadt explained “the bill would not allow for the entry of 5,000 unauthorized immigrants a day” and “it would lead to reduced unauthorized entries.” Mittelstadt told The New York Times: “In fact, it would lead to reduced unauthorized entries because it mandates a higher bar to be considered for asylum and puts in place a swifter screening process with limits on review in case of denial, and there are increased capacities for detention and removal.” [The New York Times, 2/5/24]