The Dog Ate My Operational Control of the Border

In order to separate fact from fiction, here is an annotated version of the Department of Homeland Security’s recently released “Update on Southwest Border Security and Preparedness Ahead of Court Ordered Lifting of Title 42”. Excerpts from the Update are in the text boxes, followed by my observations. (My colleagues Andrew Arthur and Todd Bensman have also written about the Update.)

DHS Secretary Alejandro Mayorkas does indeed believe the unbelievable — that our borders are secure. As my colleague Jon Feere observes, “[t]o even the casual observer, it is obvious that nothing approaching safe, orderly, and humane has been unleashed by the policies signed by Mayorkas.” As CBS News reports, “[a]t least 853 migrants died trying to cross the U.S.-Mexico border unlawfully in the past 12 months, making fiscal year 2022 the deadliest year for migrants recorded by the U.S. government, according to internal Border Patrol data obtained by CBS News.”

As to President Biden’s motivation, Center for Immigration Studies Executive Director Mark Krikorian has observed that:

[T]he White House plan for dealing with the surge of new illegal immigration — which will come on top of the existing historic surge of illegal immigration — is not to halt the surge but to launder it by granting asylum immediately to virtually all those who jump the border. The goal is to “process” hundreds of thousands of border jumpers in an “efficient and fair” manner so that they’re no longer illegal aliens. Once they’ve been re-christened as asylees (and thus on a path to citizenship), there are no more messy questions about whether they’ll show up for court and whether they’ll leave when they lose their asylum claim (as most currently do).

What President Biden inherited was priceless — the Trump administration put in place mechanisms that had actually brought the border under control (even before Title 42), such as the Migrant Protection Protocols (MPP). DHS found the MPP to be “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, pointing out that “[s]ince a recent peak of more than 144,000 in May 2019, total enforcement actions [along the southern border] ... have decreased by 64% through September 2019”, and that “[b]order encounters with Central American families — who were the main driver of the crisis ... — have decreased by approximately 80%”, and noting “a connection between MPP implementation and decreasing enforcement actions at the border — including a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico pursuant to MPP.”

All President Biden had to do was keep things on autopilot. Instead, he handed the controls to anti-border zealots and sought to terminate the MPP. As my colleague Andrew Arthur has recently written:

Joe Biden inherited what his first Border Patrol chief, Rodney Scott, described in a September 2021 letter to Senate leadership as “arguably the most effective border security in” U.S. history. Scott complained, however, that Biden quickly allowed things at the border to “disintegrate” as “inexperienced political appointees” ignored “common sense border security recommendations from experienced career professionals”.

“Increased access to lawful pathways” can be accurately translated into English to mean “increased ways that the Biden administration can evade and pervert the duly enacted immigration laws of the United States in order to let anyone in that it wants to let in”.

“Managing” can be translated to mean “quickly processing illegal aliens so they can be released into America’s communities as soon as possible”.

As Andrew Arthur reveals, “the number of illegal migrants released under the Biden administration totals just fewer than 1.35 million.” As to why the administration is having to manage “more than twice as many people”, just ask Rodney Scott.

The asylum system is indeed broken. As I have written:

Unfortunately, the tools that DHS had available to curtail the influx of illegal aliens were woefully inadequate (in large measure having been neutered by federal courts over the years). As DHS and DOJ explained:

When the expedited [removal] procedures were first implemented ... relatively few aliens [apprehended at the border] ... asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens ... were single [Mexican] adults who were immediately repatriated. ... [A]liens could be processed and removed more quickly, without requiring detention or lengthy court proceedings. In recent years, the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution ... and are subsequently placed into removal proceedings in immigration court. Most of those aliens unlawfully enter the country between ports of entry along the southern border. Over the past decade, the overall percentage of aliens subject to expedited removal and [who assert a fear and receive a] credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in ... 2008 to about 97,000 in ... 2018. ... In FY 2018 ... positive credible-fear determinations [by asylum officers, preventing the expedited removal of the aliens and sending them to immigration court] climbed to about 89% of all cases. [Yet] significant proportions of aliens who receive a positive credible fear determination never file an application for asylum or [abscond and must be] ordered removed in absentia. In FY 2018, a total of [only] about 6,000 aliens who passed through credible-fear screening ([only] 17% of all completed cases ...) established that they should be granted asylum.

As the Center has stated about that proposed legislation, “The Biden-Menendez immigration bill (U.S. Citizenship Act of 2021) would do three main things: Legalize virtually all illegal immigrants in the United States, weaken immigration enforcement, and double future legal immigration.”

As to a “fair, fast, and functioning asylum system”, the Biden administration simply means, as Andrew Arthur describes it, letting it simply “rubberstamp asylum grants and hide the disaster at the Southwest border by turning ‘illegal aliens’ into ‘asylum seekers’ with the stroke of a pen”.

As Texas Governor Greg Abbott points out:

[President] Biden’s open-border polices are enticing illegal immigrants to trek — mostly by walking — thousands of miles through treacherous regions in Central America and Mexico, often subjected to rape and torture. Many of those migrants are killed or otherwise lose their lives attempting to come here, but that does not trouble Biden enough to meaningfully discourage such illegal immigration.

As I have written:

The Biden administration notably did not seek a stay of Judge Sullivan’s order, other than a short one until December 21 in order to rearrange the deck chairs on the Biden administration’s border Titanic, sorry, to “prepare for the transition”. This is because, of course, the Biden administration actually wants to end its present use of Title 42 on the border, and already would have done so had it not been for the aforementioned federal court in Louisiana enjoining the termination on procedural grounds. As DOJ proudly proclaimed to Judge Sullivan, “CDC itself has already terminated those orders because it has determined that they are no longer necessary to protect the public health.”

That’s because more “noncitizens” tried to enter than in any previous year, and the Biden administration is releasing them into the U.S. at an unprecedented rate.

Actually, the smugglers have by and large been more truthful about the state of the border than has been the Biden administration. As I have written:

Around the world, word got out that a claim of fear of persecution upon apprehension at the border represented a virtual free pass into the U.S. — often trumpeted by alien smugglers seeking new business. And the smugglers weren’t engaging in puffery — they were accurately describing the situation.

This appears to be the first official acknowledgment of the Biden administration’s scheme uncovered by my colleague Todd Bensman. As I have written:

The Biden administration has now come upon what very well could be its silver bullet to kill off whatever remains of America’s immigration system. The projectile? Using the parole power in its attempt to convert as much of the population of illegally entering economic migrants as it can into people supposedly fleeing persecution or violence or harm of one sort or another. And I don’t mean paroling aliens out of detention aliens who have illegally crossed the border, which the administration is already doing on a mass scale. I mean granting aliens parole before they ever get to the U.S.

Yes, it is true! Immigration enforcement and the application of consequences for illegal behavior work even when done by the Biden administration.

The number of Border Patrol agents has become a questionable border security metric, as illegal border crossers now actually seek out agents to surrender to so that they may be processed, released from detention, and granted work authorization.

“Processing Coordinators”? Need I say more?

“Transport noncitizens”? To the U.S. city of their choice? As Andrew Arthur has observed:

[T]he Biden administration’s migrant transportation scheme puts the governors’ program to shame. How big is the federal effort? The [Washington] Times reports:

The busing and flight operation has grown so big that the Homeland Security Department says it has had to siphon manpower away from its regular duties.

Yes, because so many are simply being released.

“[M]ove noncitizens on to the next stage of their immigration process”? Need I say more? Sounds like the trend of calling criminals “clients” of the criminal justice system.

“[T]he capacity of CBP to process intending asylum seekers”? Translating this into English, “the capacity to release them as quickly as possible into American communities”.

"[T]he quick removal of those who do not claim fear”? As noted, asylum officers find almost every alien who claims a fear of return to have a credible fear.

I have to give it to the Biden administration. It takes a lot of chutzpah to trumpet ATD when, as the Daily Caller has just revealed:

[ICE] is significantly misreporting the number of illegal immigrants released into the country with GPS tracking technology by nearly 600%. ... ICE disclosed privately to participants of a closed-door event ... that 8,118 illegal immigrants are monitored with GPS tracking. ... Publicly, however, ICE says on its web site that 56,805 illegal aliens are monitored by GPS.

As to ATD’s “success” rate, my colleague Jon Feere explains that:

• Congress is under the misimpression that aliens released from detention and monitored through [the Intensive Supervision Appearance Program] ISAP show up to court hearings at a high rate. This is simply not true. ... For years, Congress has been told that somewhere above 90 percent of aliens monitored via ISAP show up to their immigration court proceedings. ... As [a leaked] draft [ICE] report explains, approximately 80 to 90 percent of aliens on ISAP eventually abscond if given enough time. ... [T]he program “has historically only captured and reported court appearance data for the time period that the participant is in the program, which due to ICE practices ... is approximately 14 to 18 months out of an immigration court process that averages close to five years.”

• [C]ourt appearances are not tracked after an alien is released from ISAP, and ... “any previous reporting on court appearances should be understood to be a snapshot of the first handful of cases an alien might have had scheduled during this narrow timeframe.”

  In order to overcome these very significant flaws in reporting, ICE explains in this draft report that the agency “reviewed data of ISAP participants through the entirety of their respective immigration lifecycles”, which was “focused on aliens who ICE was able to determine were enrolled in ISAP for their entire immigration lifecycle, which ended with the alien being granted relief, ordered removed, or absconding”. Shockingly, ICE found that aliens participating in ISAP have absconded from the program “at an average of over 84 percent” when looking at FY 2015 through June 30, 2020.

  ...

  This lifecycle analysis indicates that most aliens allowed out of detention and placed on some form of monitoring will eventually abscond if given enough time. When illegal aliens determine that their case to remain in the United States is unlikely to be successful, or when illegal aliens decide that complying with ICE monitoring and showing up to court isn’t worth their time, they abscond. Though it’s not mentioned in this report, I can confirm that ICE officers routinely find GPS ankle bracelets that have been cut off and discarded.

• ICE concludes in the draft report that, “The only effective means of ensuring compliance with a court order, to include an individual’s departure from the United States at their end of their immigration proceedings (if ordered removed by an immigration judge), is through the use of detention.”

   

As I have written:

• [This] new rule, as Arthur and Rob Law warn, will “remove several crucial safeguards put in place to ensure that asylum grants [to illegal aliens apprehended at the border] are not subject to fraud and abuse.”

• [T]he proverbial fox is being placed inside the hen house. The very same asylum officer corps that spent four years zealously endeavoring to undermine Trump administration efforts to secure our southern border will be given the keys to the kingdom, an almost unfettered ability to convert the coming surge of illegal border crossers into refugees.

• One [asylum] officer called the MPP and the rule that barred aliens from asylum eligibility who had failed to seek asylum in countries through which they had traveled en route to the U.S. “a supervillain plan” that made him “feel[] horrified, even physically sickened”.

• The worldview of asylum officers might help explain their extraordinarily high grant rates. ... [A]sylum officers apparently believe that most aliens illegally crossing our southern border should qualify for asylum!

   

“[T]o help mitigate increased impacts to their communities”? What impacts? President Biden’s solicitor general argued to the Supreme Court that the administration’s immigration policies only “ha[ve] incidental effects on the State[s]” and are merely “peripheral effects [that] do not qualify as ‘legally and judicially cognizable’ injuries.” Such trifles!

And the Biden/Harris presidential campaign proclaimed that:

• [We will seek] a roadmap to citizenship for the nearly 11 million people who have been living in and strengthening our country for years. ... They contribute in countless ways to our communities, workforce, and economy. In 2015, the IRS collected $23.6 billion from 4.4 million workers without Social Security numbers — many of whom were undocumented.

• Immigrants bring tremendous economic, cultural, and social value to their new communities. Even in cities hit hard by the loss of manufacturing jobs, immigrants are a key driver of entrepreneurship and population growth. ... Immigrants are bringing new life to local economies — starting businesses, paying taxes, and spending their dollars back into their new communities.

I would take from this that the only “impacts” would be good ones!

“[M]ay be provisionally released from DHS custody pending the outcome of their immigration court proceedings”? Never mind that Congress made detention mandatory. As I have written:

[The Illegal Immigration Reform and Immigrant Responsibility Act of 1996] IIRIRA “mandated th[e detention of] aliens receiving positive credible fear determinations ... pending the adjudication of their asylum claims”. How are all these aliens being released into America’s communities if the law says they must be detained? Well, as I also noted, “Congress’s command has been disregarded by every administration through misuse of the parole power. ... [T]the result is that the vast majority of aliens receiving positive credible fear determinations are released into the United States.”

What might have motivated Congress in 1996? As the Congressional Research Service explains:

Prior to IIRIRA, most aliens arriving without proper documentation who applied for asylum were released on their own recognizance into the United States (and given work authorization), a practice which enabled inadmissible aliens falsely claiming persecution to enter the country. As a result, many argued that the only way to deter fraudulent asylum claims was to detain asylum seekers rather than releasing them on their own recognizance. Indeed the practice of detaining asylum seekers has reduced the number of fraudulent asylum claims.

As my colleague Andrew Arthur has written:

ESFP began as a Reagan-administration program to help homeless vets, the elderly, and the handicapped, but has now transmogrified into a grant program ... to private and governmental organizations that feed, shelter, and transport illegal migrants released by DHS at the border.

When I wrote that, the Biden administration was “just” asking for $154 million for ESFP-H in FY 2023, but as the humanitarian border disaster it created has spun even further out of control, it now wants five times that amount.

...

Of course, that will simply encourage even more foreign nationals to venture to the border, fed by tales of those who have gone before about the U.S. government’s accommodations and largesse.

Disrupted smuggling operations? President Biden has created boom times for the smuggling industry. As the New York Times reported in July, their “revenues have soared to an estimated $13 billion today from $500 million in 2018”.

Darién Gap? I think the Biden administration has a credibility gap. My colleague Todd Bensman has revealed that:

Following months of Biden administration shuttle diplomacy, multi-national U.S.-bound immigrants from more than 150 countries are now finding international routes to the southern border faster, easier, and less obstructed than ever before. Panama has dramatically shortened the notorious Darien Gap route from South America for the first time and Mexico has amended a years-old policy of using a national guard road blockade to slow U.S.-bound immigrants on its Guatemala border for one that now immediately hands out fast-pass visas straight to the American border.

Taken altogether, the relative new ease, convenience, safety, and swiftness of global journeys to the southern border — the new Darien Gap bypass route undoubtedly safer — should induce even greater numbers of foreign nationals to try the journey .

...

The Biden government has not taken specific credit for these two consequential changes. But the enticing changes do come after months of American diplomacy with Panama and Mexico and fall in line with the administration’s overarching policy idea for border management that illegal immigration not be stopped so much as rendered “safe, humane, and orderly”. The administration has certainly lodged no objections to the creation of what amounts to a free-flow corridor from Panama through Mexico, to include nary a discouraging word on Mexico’s apparent order that its national guard deployment, which Biden’s administration once insisted be maintained, stand down.

As Andrew Arthur has written: “[t]he smugglers don’t need to manipulate or mislead would-be migrants about the president’s border policies.”

“[N]ot designed to handle the current volume of migration nor the increased volume we expect”? Who could have previously imagined such a debacle?

“Fully screened and vetted”? They can't be serious. As Andrew Arthur has written:

The day Kabul capitulated, President Biden tapped DHS to spearhead the resettlement of Afghans in the United States . ... DHS paroled tens of thousands of Afghan evacuees into this country. Every arriving Afghan parolee was supposed to be screened, vetted, and inspected before being released into the United States. The [Office of the Inspector General] OIG concluded, however, that CBP sometimes lacked “critical data” (like names and dates of birth) “to properly screen, vet, or inspect Afghan evacuees”, and worse, “admitted or paroled evacuees who were not fully vetted into the United States”. Consequently, the OIG found, “DHS paroled at least two individuals into the United States who posed a risk to national security and the safety of local communities and may have admitted or paroled more individuals of concern.”

And as my former DHS and CIS colleague Robert Law has written:

There are known and glaring weaknesses in the current immigration vetting procedures utilized by DHS. Bad actors and fraudsters will continue to exploit these loopholes and obtain immigration benefits until DHS enhances its vetting authority. The current background checks that USCIS conducts produces some useful information but key gaps exist. ... The tools exist to close these immigration vetting vulnerabilities if the Biden administration chooses to avail itself of them.

I wouldn’t hold my breath.

The key driver for illegal immigration, even for those who claim a fear of return, is economic opportunity. As Maria Echaveste, former deputy chief of staff for President Bill Clinton, concludes, “[w]hile people choose to risk life and limb to enter this country illegally for many reasons, the vast majority come to seek employment — and they find it.”

As The New York Times’ Miriam Jordan observes:

Millions of [Venezuelan] migrants first went to nearby countries like Colombia, Ecuador, Chile and Peru. But because the economies of those countries began to sputter, they said that they could no longer make as much money to send home. The United States, they heard, was allowing Venezuelans who made it to the border to stay in the country, and jobs were plentiful. So these migrants were willing to basically risk their lives to reach the United States. They braved the lawless jungle out of Venezuela and passed through seven countries to ultimately reach the United States out of despair, out of a desire to make a living and support their families.

And as Andrew Arthur concludes:

Th[e Venezuelans] are economic migrants, pure and simple, not asylum seekers. While I sympathize with their inability to “make as much money to send home” in other South American countries, and the dangerous trek they made to get to the Southwest border, they aren’t eligible for asylum under U.S. law.

This takes some gall. As Andrew Arthur has reported:

• The Biden administration complains that — despite the detention mandate — it is forced to release illegal migrants on parole because Congress has failed to give it adequate detention space to hold them. A series of court-ordered disclosures in ongoing litigation, however, reveals that ICE detention beds are going empty while the Biden administration is releasing tens of thousands of aliens monthly on parole.

• [M]ore than 31.5 percent of ICE detention beds (9,118) ... went empty. ... The Biden administration is not even attempting to use its authorized bed space for detaining illegal migrants. No wonder that the president is asking Congress to cut funding for detention beds by more than a quarter — from the current level of 34,000 beds to just 25,000 — in FY 2023.

   

We could only wish for the reappearance of the bipartisan Joe Biden, who as a U.S. senator voted for the Antiterrorism and Effective Death Penalty Act of 1996, IIRIRA, and the Secure Fence Act.

“Critical labor shortages”? As my colleagues Steven Camarota and Karen Zeigler have written:

While the overall unemployment rate for immigrants and the U.S.-born has returned to pre-pandemic levels, this obscures the low labor force participation rate of the U.S.-born, particularly those without a bachelor’s degree. The unemployed only includes those who have actively looked for a job in the prior four weeks, while labor force participation measures the share of all working-age people holding a job or actively looking for one. If the labor force participation rate for these less-educated Americans was the same in 2022 as it was 2000, then seven million more people would be in the labor force.

And as Maria Echaveste has concluded:

• If we are concerned about stagnating wages and adverse working conditions for those at the bottom, reducing the supply of unauthorized workers would change the dynamics of the labor market. We should be able to ask this question without being considered racist or nativist. Today, those who are competing with the undocumented workforce are often legal immigrants and their children, as well as traditional low-income populations. ... If new workers are needed, it should not be because the wages and terms offered are insufficient to attract existing legal workers.
• If we care about low-income workers in this country, we need to create pressure to improve their economic condition by reducing the supply of unauthorized workers.

Postscript: As punishment for writing a puerile memo congratulating itself for decimating America’s borders, DHS has been turned into six pillars of salt.