On the afternoon of Friday, February 10, CBP released its latest statistics on the agency’s encounters of aliens at the Southwest border. They’re nothing to crow about: Border Patrol agents apprehended more than 128,000 illegal migrants in the slowest travel month of the year, while CBP officers at the ports of entry stopped nearly 28,000 additional inadmissible aliens. The Biden administration’s only doing better compared to its otherwise dismal track record. Here’s how we got here, and more importantly where we’re going.
The Border Numbers, in Context. In this context, CBP “encounters” are the sum of Border Patrol apprehensions at the Southwest border plus aliens deemed inadmissible at the ports of entry along that border. In total, the agency encountered more than 156,000 aliens at the U.S.-Mexico line in January.
As noted, more than 128,000 of those encounters were illegal migrants encountered by Border Patrol agents, while almost 28,000 others were would-be immigrants stopped by CBP officers at the ports.
Border Patrol hasn’t apprehended fewer than 148,000 migrants at the Southwest border since February 2021 — Biden’s first full month in office — when agents caught just fewer than 98,000 illegal entrants.
By that standard, the Biden administration did well last month. But only by that standard.
Between April 2006 (when agents nabbed just short of 161,000 illegal migrants) and February 2021, apprehensions exceeded 128,000 in just one month: May 2019, when agents stopped fewer than 133,000 aliens who had crossed the border illegally.
In other words, there were only 3.4 percent fewer apprehensions last month than in the worst month for apprehensions at the Southwest border in the 13-year period between May 2006 and May 2019.
Still, that’s better than apprehensions continuing the blistering pace they had been from September to December 2021, when they exceeded 200,000 per month.
To put those numbers into context — particularly that May 2019 Trump-era high — apprehension numbers were so daunting in FY 2019 that then DHS Secretary Kirstjen Nielsen declared a “border emergency”, stating in March of that year:
Today I report to the American people that we face a cascading crisis at our southern border. The system is in freefall. DHS is doing everything possible to respond to a growing humanitarian catastrophe while also securing our borders, but we have reached peak capacity and are now forced to pull from other missions to respond to the emergency.
If the system was in “freefall” in FY 2019 — a year when apprehensions at the Southwest border barely exceeded 851,500 — what word would an objective observer use to describe the situation today? In just the first four months of the current fiscal year, apprehensions have already exceeded 762,000, and “travel season” — the period in which illegal entries surge — has not yet begun.
The “Predictable Pattern”. It’s difficult to remember, given the unmitigated disaster that has unfolded at the Southwest border in the past two-plus years, but there was actually a great deal of attention paid to the surge in illegal entries at the Southwest border directly after Biden took office.
In a March 25, 2021, White House press conference, President Biden was asked about a then-recent rush of migrants across the Mexican border, and in particular unaccompanied alien children (UACs) and adult migrants entering illegally with children in “family units” (FMUs). His response:
The truth of the matter is: Nothing has changed. As many people came — 28 percent increase in children to the border in my administration; 31 percent in the last year of — in 2019, before the pandemic, in the Trump administration. It happens every single, solitary year: There is a significant increase in the number of people coming to the border in the winter months of January, February, March. That happens every year.
That’s not technically correct (as I will explain, January is the slowest travel month), but perhaps the president was channeling his inner Washington Post, as the paper that very day published an analysis from the University of California at San Diego that contextualized seasonal apprehension numbers.
That analysis was originally headlined “There's no migrant 'surge' at the U.S. southern border. Here's the data”. It’s aged like fine milk, and if you click on that link now, it has the more anodyne header “The migrant ‘surge’ at the U.S. southern border is actually a predictable pattern”.
The results of that analysis are synopsized in the second paragraph of the article:
Underappreciated in the developing narrative is just how predictable the rise in border crossings is. We analyzed monthly U.S. Customs and Border Protection data from 2012 through February and found no clear evidence that the overall increase in border crossings in 2021 can be attributed to Biden administration policies. Rather, the current increase fits a pattern of seasonal changes in undocumented immigration combined with a backlog of demand because of 2020s coronavirus border closure.
Needless to say, there has been not just a migrant surge since that analysis, but the largest migrant tsunami in U.S. history since Joe Biden took office, with Border Patrol agents setting new annual apprehension records in both FY 2021 and again in FY 2022 at the Southwest border.
That said, the researchers’ conclusions about there being, historically, a seasonal ebb and flow in illicit migrant entries throughout the year is still valid.
The article reveals that apprehensions in the nine-year period between FY 2012 and FY 2020 reached their low point in January, and then steadily climbed through the spring, hitting their peak in May before gradually sloping off in June and July and through the fall and winter.
That’s more or less what happened in FY 2022, except that apprehensions rose again in September and reached their peak in December (when there were more than 221,000 apprehensions) — three months into FY 2023.
To explain that surge, I must go back to before that Trump-era FY 2019 border emergency.
Trump’s Policies and Biden’s Reversals. The Trump administration scrambled to respond to the surge in migrants — and in particular migrants in family units — it was dealing with in FY 2019.
Prior to FY 2013, most adult migrants realized that bringing children with them when they entered illegally was cruel and dangerous. As a bipartisan April 2019 federal report explained:
Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.
Faced with a rise in FMU entries in FY 2014, the Obama administration began detaining them on military bases to deter other migrants from using children as pawns to enter illegally after apprehension.
In April 2015, however, a federal district court judge ruled the Obama administration could not detain children and adults in FMUs for more than 20 days in unlicensed facilities (a later circuit court opinion held the adults could be detained, but not the children), and consequently DHS began releasing both the kids and the adults to avoid “family separation”.
That simply encouraged more FMU migration, but when Trump took office, he scared off most illegal migrants — for a while. As FMU apprehensions began to surge, however, Trump’s attorney general in April 2018 decided to prosecute all adults entering illegally, including those in FMUs, to stem the tide.
That resulted in families being separated, as the adults were sent to U.S. Marshals Service custody and the children (now deemed “unaccompanied”) were put into shelters run by the Department of Health and Human Services for placement with “sponsors” in the United States.
Not only was that plan a public-relations disaster, but it was poorly implemented as well. Trump stepped in with an executive order ending those family separations in late June 2018, opening the floodgates for smugglers to run even more families to the United States.
Nearly 474,000 of the just over 851,500 migrants apprehended at the Southwest border in FY 2019 were in family units — 55.6 percent of the total. Trump had to act quickly, and did, implementing several different policies to deter illegal migration, and in particular by migrants in FMUs.
The most notable — and effective — of those policies was the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. MPP allowed DHS to send “other than Mexican” aliens apprehended entering illegally back across the border to await their asylum hearings.
In an October 2019 assessment, DHS concluded that Remain in Mexico had “been an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”. Asylum cases were expedited under the program, DHS found, and MPP removed incentives for aliens to make weak or bogus claims after entering illegally in an effort to remain here.
Then-candidate Joe Biden vowed to end MPP and those other Trump border policies, but he moderated his rhetoric after the election, asserting in December 2020 that he planned to terminate those programs “at a slower pace than he initially promised, to avoid winding up with '2 million people on our border’”, and only after “’setting up the guardrails’ to find a solution to the immigration issue”.
That promise notwithstanding, Biden quickly reversed Trump’s border policies. Most significantly, almost immediately after Biden took office, DHS suspended MPP and began bringing the approximately 25,000 migrants who were still in Mexico under the program into the United States.
That prompted the states of Texas and Missouri in April 2021 to sue to force DHS to continue returning migrants to Mexico under MPP. That case (Texas v. Biden) has been bouncing around the federal courts ever since. Consequently, however, just 5,574 of the more than 2.2 million aliens apprehended at the Southwest border in FY 2022 were returned to Mexico under MPP — the last 151 in August.
As detrimental to border security as Biden’s quick reversal of Trump’s border policies was, his abnegation of congressional mandates intended to deter illegal entries, such as Congress’ requirement that all illegal migrants be detained until they are granted asylum or alternatively removed, has had a much more harmful effect on the situation at the Southwest border.
Deterring foreign nationals from entering illegally is crucial to ensuring DHS can achieve operational control of that border. Unlike every other president in history, however, Biden has explicitly rejected the use of such deterrents as a border security measure.
Instead, the administration is exclusively focused on providing every foreign national who can make it to this country — legally or otherwise — with “safe, orderly, and legal pathways ... to be able to access our legal system”.
Title 42. The one quasi-border Trump-era policy the current administration retained was amassed in a series of CDC orders, issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, that directed the expulsion of aliens who entered illegally or without proper documents.
Biden likely retained Title 42 because it was related to CDC Covid-19 declarations he’s relied upon to continue emergency Medicaid expansions and to forgive $400 billion in student loan debt, though notably DHS under his watch has complied with those orders much less robustly than it did under Trump.
Last April, however, the administration announced that it would end Title 42 on May 23, even though DHS warned that up to 18,000 migrants per day would enter illegally once Title 42 ended. A group of states successfully sued to block that from happening, but then in a separate federal court action, a different district court judge directed DHS to stop expelling migrants under Title 42 as of December 21.
Foreign nationals rushed to the Southwest border in December to take advantage of the end of Title 42, but by the time the Supreme Court intervened to continue Title 42 until it could consider the matter, they decided to enter illegally anyway. That’s why CBP encounters at the Southwest border reached their highest level in history in December.
“New Border Enforcement Actions”. For the first two years of the Biden administration, providing “safe, orderly, and legal pathways” for aliens to access our legal system meant treating every illegal migrant as an “asylum seeker”, and releasing most of the ones who weren’t expelled under Title 42 into the United States.
The administration had months to come up with a plan to deal with the potential post-Title 42 migrant influx, but it wasn’t until January 5 that the White House produced what it termed its “New Border Enforcement Actions” in a fact sheet issued that day.
Of the different proposals in the January 5 fact sheet, two stand out: (1) An extension of a Venezuelan parole program that will now also apply to Nicaragua, Haiti, and Cuba, allowing 30,000 nationals of those countries to enter the United States per month — with work authorization — on parole for a two-year period, in lieu of entering illegally; and (2) access for would-be illegal migrants to the CBP One app, allowing them to schedule appointments for interviews with CBP officers at the ports of entry, again, instead of entering illegally.
The first proposal is likely an illegal use of DHS’s limited parole authority (it’s being challenged by a group of state plaintiffs in a case captioned Texas v. DHS), while the second won’t do anything to ameliorate the dangers migrants face on the perilous trek to the Southwest border — it will simply add a pseudo-legal gloss to illegal migration.
The administration hasn’t provided a lot of information about how those CBP One entries will work, but after plowing through various court filings and disclosures, it appears that it is a continuation of a process by which NGOs forwarded the names of migrants who “meet certain vulnerability criteria” (undefined) to CBP for interviews at the ports to seek exemptions from Title 42 expulsion.
Instead of NGOs scheduling appointments at the ports for those interviews, the would-be migrants themselves will now be able to do it through CBP One.
Surge in Inadmissible Aliens at the Ports. Which brings me back to CBP’s January numbers, which show CBP officers encountered nearly 28,000 illegal migrants at the Southwest border ports last month.
Border Patrol apprehension statistics go back to 1925, but neither CBP nor its predecessor agencies has kept similar numbers for inadmissible aliens at the land border ports of entry for long.
The earliest available statistics on inadmissible aliens at the Southwest border ports begin in October 2016, and in that five-year span, they exceeded 20,000 per month just once (in October 2016, when CBP officers encountered just over 20,500 inadmissible aliens at the ports) prior to April 2022.
In April, CBP officers encountered more than 32,000 inadmissible aliens at the ports along the U.S.-Mexico line, and since then, officers have encountered more than 237,000 inadmissible port migrants. That is a 37 percent increase over FY 2022’s annual totals, a 214 percent jump from FY 2021, and a 312 percent climb from FY 2020 — all in the last 10 months.
It’s clear that, in the name of providing “safe, orderly, and legal pathways” for foreign nationals who otherwise have no right to be in the United States, the Biden administration is increasingly moving would-be migrants through the ports, rather than waiting for them to enter illegally. The use of CBP One, as described in the White House fact sheet, is simply going to facilitate that process — or aggravate it, depending on your viewpoint.
The Curious Timing. Note finally that the CBP statistics reveal that they were “last modified” on February 6, and therefore ready to go on that date. That was the day before President Biden delivered his State of the Union (SOTU) address, and yet CBP released its statistics only just before close of business on Friday.
I was interviewed the morning of the SOTU, and the questions suggested that the reporter (from an outlet affiliated with the U.S. government) expected CBP’s statistics that day. So, why the delay?
In the SOTU, Biden crowed that, “Since we launched our new border plan last month, unlawful migration from Cuba, Haiti, Nicaragua, and Venezuela has come down 97%”. There was a decrease in CBP encounters of aliens from those four countries in January, but nothing like the president described.
All told, CBP encountered more than 22,000 aliens from those four countries at the Southwest border in January: just fewer than 12,000 of them were apprehended by Border Patrol, while more than 10,100 others were deemed inadmissible at the ports.
That’s an 86 percent decline in apprehensions from December, but a 42 percent increase in CBP encounters at the ports. Overall, it represented a more modest 76 percent decline in month-to-month encounters.
Even just focusing on apprehensions, however, the Biden administration is only doing better compared to its own deficient performance. Apprehensions of nationals of those four countries rose last month by nearly 400 percent compared to January 2021, and by 1,275 percent compared to January 2020 — well before the Covid-19 pandemic shut down most illicit travel.
Had CBP’s statistics been released on February 6, serious questions would have been raised about the president’s contentions. As is, Americans had to take them at face value.
This isn’t the first instance where the timing of CBP’s Southwest border numbers has been a little fishy.
Those numbers traditionally are issued on the 15th of the month for the month before, but December’s ghastly statistics weren’t released until after close of business on January 20. Most significantly, the record yearly numbers for apprehensions in FY 2022 didn’t appear until nearly midnight on Friday October 21 — when early voting in the November midterm elections was well underway.
This all stinks, and Congress should be asking the administration whether it is timing the CBP Southwest border release numbers for political purposes.
Hiding the Scope of the Disaster. While Border Patrol Southwest border apprehensions declined in January — traditionally the slowest month for illegal entries — the administration’s border performance only improved compared to how historically bad it was up to this point. When assessed in toto, CBP’s statistics for last month suggest what many have assumed for a while: Biden isn’t really interested in securing the Southwest border, but he’s doing his best to hide the scope of the ensuing disaster.