One of the most common questions that I regularly get is “How many illegal migrants has President Biden released?” I have run the numbers, and it’s at least 2,020,522. I promise to show my math, but the real total is likely hundreds of thousands more, plus 1,373,155 others who evaded Border Patrol agents, all thanks to the president’s “catch and release” policies.
Disclosures in Texas v. Biden. Most of the information publicly available on President Biden’s migrant releases comes from Texas v. Biden, a case filed by the states of Texas and Missouri in April 2021 to force DHS to reimplement the Trump-era Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.
By way of background, MPP was a program implemented in January 2019 by then-DHS Secretary Kirstjen Nielsen, which allowed CBP to return “other than Mexican” migrants (OTMs) caught entering illegally back to Mexico to await their removal hearings.
Although MPP was not in full effect until summer 2019, nearly 70,000 OTMs were returned across the border under the program during the Trump administration. When their hearing dates arrived, MPP enrollees were paroled in custody into the United States to appear before immigration judges at border “port courts”. If they were granted asylum, they were admitted into the United States; if asylum was denied, they were removed.
In its October 2019 assessment of the program, DHS determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. Asylum cases were expedited under the program and, as a consequence, MPP removed incentives for aliens to make weak or bogus claims when apprehended.
Despite the effectiveness (and indispensability) of MPP, one of President Biden’s first actions after taking office was to suspend new enrollments in the program.
That prompted Texas and Missouri to file suit in the U.S. District Court for the Northern District of Texas, where it was assigned to Judge Matthew Kacsmaryk. Despite the pendency of that matter, DHS Secretary Alejandro Mayorkas formally terminated MPP in June 2021.
Two months-plus later, in August, Judge Kacsmaryk enjoined Mayorkas’ attempted termination of MPP.
More saliently for purpose of this analysis, however, and to ensure compliance with his order, the judge directed DHS, by September 15, 2021, and the 15th of each month thereafter, to file a report with the court that included the total number of “applicants for admission” encountered by CBP at the Southwest border who were paroled into the United States, as well as the number of such aliens “released into the United States, paroled or otherwise”.
As of June 15, 2022, those disclosures revealed that under the Biden administration, CBP — both Border Patrol agents and CBP officers in the agency’s Office of Field Operations (OFO) at the ports — and ICE had released 1,049,532 Southwest border migrants into the United States.
Note that those nearly 1.05 million migrants were released from DHS custody despite the fact that section 235(b) of the Immigration and Nationality Act (INA) mandates that all such aliens be detained until they are formally admitted, granted asylum or some other relief from removal, or removed.
On June 30, 2022, the Supreme Court vacated Judge Kacsmaryk’s order and sent Texas to the lower courts for consideration of Mayorkas’ second attempt to terminate MPP (issued in October 2021, while the judge’s order was on appeal to the Fifth Circuit). The justices, however, did not issue their final judgment in the case until August 1.
Consequently, on July 15, DHS filed its last disclosure in Texas (for the month of June 2022), reporting to Judge Kacsmaryk that CBP and ICE released 79,652 Southwest border migrants in June. That brought Biden’s total Southwest border migrant release tally to 1,129,184.
After that, however, the court-ordered disclosures in Texas stopped.
Florida v. U.S. and Border Patrol Releases. As Anna Diakun from the Knight First Amendment Institute noted at the start of the second year of the current administration:
On President Joe Biden's first day in office, White House press secretary Jen Psaki pledged that the administration would "bring transparency and truth back to government." While the administration took some initial steps toward fulfilling this pledge, it has simply failed to act on a number of transparency issues. Worse, the administration seems to be embracing the opaque and undemocratic policies of its predecessors on a few other fronts.
Immigration is likely the least transparent “front” of the Biden administration, and nothing underscores that fact like the president’s refusal to disclose statistics on migrant releases at the Southwest border.
Want proof? In March 2021, the state of Florida filed suit in U.S. district court (ironically in the “Sunshine State”), challenging the Biden administration’s migrant release policies, in a case captioned Florida v. U.S.
The case involved a massive discovery effort, which included depositions of both U.S. Border Patrol Chief Raul Ortiz and ICE Executive Associate Director for Enforcement and Removal Operations Corey Price.
And yet, in his March 8 opinion in Florida, presiding Judge T. Kent Wetherell II exasperatedly explained:
Since President Biden took office on January 20, 2021, [Border Patrol] has released more than one million aliens at the Southwest Border. That figure does not include releases by OFO because OFO does not publicly report its releases, nor does it include releases by ICE because ICE does not distinguish between interior enforcement and border enforcement in its publicly released data. [Emphasis added.]
At least, as Judge Wetherell alluded to, Border Patrol does provide statistics on its Southwest border migrant releases, on yearly CBP web pages captioned “Custody and Transfer Statistics”.
For FY 2022, that page reveals that between July (the month after the last disclosures in Texas) and September 2022, Border Patrol agents released 70,212 illegal migrants with Notices to Appear (NTAs) on their own recognizance (OR), and an additional 166,158 on “parole” under section 212(d)(5)(A) of the INA with “alternatives to detention”, or ATD (identified as “Parole+ATD”). That brings the total for Border Patrol Southwest border migrant releases during that three-month period at the end of FY 2022 to 236,370, and the grand total — not counting OFO and ICE releases — to 1,365,554.
The “Custody and Transfer Statistics FY2023” web page shows that between October 2022 and February 2023 (the latest reporting month), Border Patrol agents released 79,671 Southwest border migrants on NTA/OR, and an additional 295,037 others on Parole+ATD, for a five-month total of 374,708.
Between the Border Patrol, OFO, and ICE disclosures in Texas and the Border Patrol Custody and Transfer Statistics numbers, but not including OFO and ICE releases after June 30, 2022, the total number of illegal migrants encountered by CBP at the Southwest border and released into the United States since Joe Biden became president therefore is 1,740,262.
Unaccompanied Alien Children. In its monthly disclosures in Texas, DHS made clear that it was not including release statistics for unaccompanied alien children (UACs):
This report does not include data on unaccompanied alien children (UCs), as defined in 6 U.S.C. § 279(g), who the Court recognized are not amenable to MPP, ECF No. 94 at 9, and who are subject to special processing and are transferred to U.S. Department of Health and Human Services Custody pursuant to the Trafficking Victims Protection Reauthorization Act. See 8 U.S.C. §§1232(a)(5)(D), 1232(b)(3), 1232(c)(2)(A), 1232(c)(3); see also CBP, Southwest Border Encounters, https://www.cbp.gov/newsroom/stats/ southwest-land-border-encounters (providing statistics on UCs encountered by CBP).
Let me explain.
By definition, an “unaccompanied alien child” is an alien under the age of 18 who has no lawful immigration status and “with respect to whom ... there is no parent or legal guardian in the United States; or ... no parent or legal guardian in the United States is available to provide care and physical custody”. That’s the reference to 6 U.S.C. § 279(g) above.
The Homeland Security Act (HSA), which abolished the former INS and created DHS, created the concept of UACs as a separate alien group and vested jurisdiction for the housing and placement of UACs who are in removal proceedings with the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS, also referenced above).
At the beginning, however, there weren’t a lot of UACs for ORR to deal with. According to the Congressional Research Service (CRS), in the early 2000s DHS only encountered about 6,700 UACs annually, placed into removal proceedings, and referred to ORR.
That all changed beginning in late 2008 when Democrats in Congress passed an extremely problematic law (that even President Obama didn’t like), the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA, again referred to in the excerpt above).
Under TVPRA, DHS must transfer all UACs in its custody from “non-contiguous” countries (that is, every country other than Canada and Mexico) over to ORR within 72 hours of encounter, for placement with “sponsors” in the United States — even if they have not been trafficked and do not have asylum claims.
That 2008 act has subsequently served as a magnet drawing minors to enter illegally. By FY 2012, three fiscal years after the TVPRA was passed, Border Patrol apprehended more than 24,400 UACs at the Southwest border, a figure that climbed to 38,750 in FY 2013 and 68,500 in FY 2014.
And, not surprisingly, given that TVPRA offers preferential treatment to UACs who aren’t from Mexico or Canada, the number and percentage of UACs apprehended at the border from non-contiguous countries has skyrocketed. According to CRS:
In FY2009 ... children from Mexico and the Northern Triangle countries (El Salvador, Guatemala, and Honduras) represented 82% and 17%, respectively, of the 19,668 UAC apprehensions that year. By FY2021 [when nearly 145,000 UACs were apprehended at the Southwest border], those proportions had flipped, with Mexican and Northern Triangle children respectively representing 18% and 77% of all UAC apprehensions.
Since February 2021, Border Patrol has apprehended 277,383 UACs from non-contiguous countries at the Southwest border, and OFO has encountered an additional 2,877 UACs at the ports of entry there — 280,260 in total.
That said, this figure may be low, because HHS reports in a March 28 fact sheet that 251,635 UACs were referred to ORR in FY 2021 and FY 2022, a figure that would not include the 46,212 non-contiguous UACs encountered by CBP at the Southwest border in FY 2023.
In any event, as of the date that fact sheet was released, HHS only had “approximately 7,994” UACs in its custody, and the department explains that UACs were only spending, on average, 25 days in ORR custody before they were placed with "sponsors" (often their illegal-alien parents or other relatives already in the U.S., who paid to have the children smuggled in the first place). Thus, nearly all, if not all, of those UACs encountered at the Southwest border by the end of February have already been released into the United States.
The Grand Total. On the low side, the Biden administration has released at least 2,020,522 illegal migrants encountered by CBP at the Southwest border into the United States — more people than reside in 13 U.S. states, or roughly 35,631 migrants more than the combined populations of Dallas, Texas, (1,259,404) and Seattle, Wash. (725,487).
That figure doesn’t include the 1,373,155 illegal migrants who were detected entering illegally but who successfully evaded agents at the Southwest border under Biden, known colloquially as “got-aways”; at least 385,000 in FY 2023, according to Chief Ortiz; 599,000 in FY 2022; and 389,155 in FY 2021.
Add them in, and you are now at 3,393,677, again not counting the unknown (and hidden) number of migrants released by OFO after June 30, 2022, or aliens transferred by CBP at the Southwest border to ICE and released after that date. That’s just 375,808 fewer people than live in Los Angeles, America’s second-largest city. Add in the unknowns, and the migrant total likely exceeds LA’s population.
I am just focusing on what I know, and what I know is that thanks to Joe Biden’s feckless and — according to Judge Wetherell, at least — oft-illegal border policies, there are now at least 2,020,522 new migrants, encountered by CBP at the Southwest border and released into the United States, here. And they will likely be here indefinitely, if not forever.