On Border Detention, Biden Refuses to Play by Biden’s Rules

Let alone by congressional mandates, and that's what's driving the migrant surge

By Andrew R. Arthur on May 26, 2023

Much of the most recent debate on immigration and the border has focused on the administration’s failure to fulfill its statutory obligation to detain migrants who have entered the United States illegally over the Southwest border and who have been deemed inadmissible at the ports along that border. Even putting aside Congress’ mandates, a much bigger problem is that when it comes to the detention of illegal migrants, Biden refuses to play by Biden’s own rules — and that’s driving the migrant surge.

“Biden’s Border Fiasco”. Illegal migration at the Southwest border has exploded since Joe Biden became president on January 20, 2021.

In FY 2021, Border Patrol set an all-time record for Southwest border apprehensions, nabbing nearly 1.66 million aliens who had entered illegally even while an additional 389,155 others are reported to have evaded apprehension to make their way safely into the United States (known as “got-aways”).

That “all-time record” for Southwest border apprehensions didn’t stand for long, as in FY 2022, agents caught more than 2.2 million illegal entrants. Don’t fault the agents — they were so overwhelmed with transporting, processing, caring for, and all-too-often releasing migrants that an additional 599,000 got-aways got past them that fiscal year.

Those FY 2022 numbers were so awful that the Biden administration hid them from the American people before releasing them shortly before midnight on a Friday after early voting in the 2022 midterm elections had already begun.

Regardless of what you may hear from the White House, this trend has continued into FY 2023. Through the end of April, agents have made nearly 1.235 million additional apprehensions this fiscal year, while an 530,000 additional got-aways have already entered since October 1.

Frustrated, the (left-leaning) editorial board at Bloomberg Opinion in August called for leadership at the border while deeming the situation there “Biden’s Border Fiasco”.

The Reason Why. Any objective observer would conclude that border security has degraded at the Southwest border since Biden took office, but that raises the question as to why so many migrants have decided to enter the United States now.

Here’s DHS Secretary Alejandro Mayorkas’ excuse for that unprecedented surge, in congressional testimony from April 2022:

Violence, food insecurity, poverty, and lack of economic opportunity in several countries in the Western Hemisphere are driving unprecedented levels of migration to our southwest border. The devastating economic impact of the COVID-19 pandemic on the region has only exacerbated these challenges, while human smuggling organizations peddle misinformation to exploit vulnerable migrants for profit.

Respectfully, “violence, food insecurity, poverty, and lack of economic opportunity” have all been intractable issues in “several countries in the Western Hemisphere” for decades. They were a key focus of my third-year Latin American history class at UVA, in 1986.

That said, I will concede that Covid-19 has taken its toll, but there have been significant ups and downs in the world economy in the past (think 2008) that have not driven migrant waves to our shores.

“Human smuggling organizations” have also plainly played a role in driving this massive human wave.

But if the “misinformation” they’re “peddling” is that would-be migrants are likely to be allowed to live and work here indefinitely (if not forever) if they can just make it to this country, that hardly counts as “misinformation” at all — the Biden administration admits its DHS has released more than two million illegal migrants, and the actual total (including non-disclosed stats) is likely closer to three million.

Florida I and Florida II. Which brings me to two recent decisions out of the U.S. District Court for the Northern District of Florida.

The state of Florida has challenged what it terms the Biden administration’s “overarching non-detention policy” in two cases, the first filed in September 2021 and captioned Florida v. U.S. (Florida I), and the second filed on May 10 in response to the administration’s 11th-hour scramble to deal with an expected tsunami of illegal entrants once Title 42 ended — by releasing those migrants en masse — captioned Florida v. Mayorkas (Florida II). Both cases were assigned to the same judge, T. Kent Wetherell II.

In Florida I, the state argued that the Biden administration is under a statutory mandate in section 235(b) of the Immigration and Nationality Act (INA) to detain all illegal entrants apprehended by Border Patrol agents at or near the border.

Florida I involved a 17-month slog of briefing and discovery that uncovered the Biden administration’s blatant (and patent) failures to comply with Congress’ migrant detention mandates at the Southwest border.

At the end of it, on March 8, Judge Wetherell issued an opinion in which he concurred that the Biden administration was under an obligation to detain illegal migrants, with which it was failing to comply.

More saliently, however, Judge Wetherell answered the question of why so many migrants are coming to the United States under the Biden administration, explaining that the president’s non-detention:

actions were akin to posting a flashing “Come In, We’re Open” sign on the southern border. The unprecedented “surge” of aliens that started arriving at the Southwest Border almost immediately after President Biden took office and that has continued unabated over the past two years was a predictable consequence of these actions. Indeed, [Border Patrol Chief Raul] Ortiz credibly testified based on his experience that there have been increases in migration “when there are no consequences” and migrant populations believe they will be released into the country.

Detention pending an asylum determination is the “ultimate” consequence for most illegal entrants because it prevents them from living and working here — and thus recouping the thousands of dollars they have paid their smugglers — while they are applying for asylum (which few will receive).

Biden’s ICE Budget Overview. And that, in turn, brings me to the president’s FY 2024 budget.

ICE is responsible for the detention of aliens encountered by CBP at the Southwest border, as well as immigration detention generally.

But notwithstanding the massive (and unabating) surge of migrants over that border, as I explained in April directly after the president sent his FY 2024 budget to the Hill, Biden is asking — yet again — for Congress to cut ICE’s detention funding from 34,000 daily detention beds (expressed as its “Average Daily Population” or “ADP”) to 25,000 daily beds.

The administration’s budget request for ICE is summarized in that agency’s FY 2024 “Budget Overview”, and on p. 3 of that document, the agency first explains why it failed to fill the 34,000 detention beds Congress paid for in FY 2022:

FY 2022 ADP ended at 22,630, an increase of 3,169 (16%) over EOY FY 2021’s total of 19,461. In alignment with guidance to limit detention among noncitizens who do not threaten national security, public safety, or meet mandatory detention requirements, noncitizen ADP remained below target in FY 2022.

Let me translate. “Noncitizen” is Biden-speak for what Congress refers to in section 101(a)(3) of the INA as an “alien”. “EOY” is “end of year”, that is the number of aliens who were detained at the end of FY 2021, and thus the administration is crediting itself with detaining 16 percent more aliens in FY 2022 than it had at the end of the prior fiscal year — but still 11,370 fewer than Congress gave it funding for.

Then, there is the vague reference to “guidance to limit detention among [aliens] who do not threaten national security, public safety, or meet mandatory detention requirements”.

The “guidance” in question is a September 2021 memo issued by Mayorkas captioned “Guidelines for the Enforcement of Civil Immigration Law”. The secretary therein limited the ability of ICE officers to engage in what it terms “immigration enforcement action”, that is the questioning, arrest, detention, prosecution, and removal of removable aliens.

The first problem, however, is that the Mayorkas guidance has been enjoined by court order in Texas v. U.S. since last June. The administration’s appeal of that order is currently awaiting decision by the Supreme Court (it was argued in November), but the order is still law.

The second problem is that, as Judge Wetherell held, ICE is required to detain all illegal border entrants, which is a “mandatory detention requirement” — it’s just one with which it the administration is refusing to comply.

To explain the third problem, I need to refer to a separate statement in the ICE Budget Overview, this one at p. 18, wherein the agency explains why it only needs the 25,000 detention beds it’s requesting in FY 2024: “Funding an ADP of 25,000 maintains ICE’s ability to effectively manage its current detainee population flows. ICE retains the ability to apprehend, detain, and remove noncitizens that present a threat to national security, border security, and public safety.”

Although ICE never states as much, the phrase “threat to national security, border security, and public safety” is — like “noncitizen” — a Biden administration term of art — found, once again, in the currently enjoined September 2021 Mayorkas guidelines memo.

That memo identifies just three classes of aliens as “priorities” for immigration enforcement action”, specifically those who pose a: “threat to national security” (terrorists and spies); “threat to public safety” (“typically because of serious criminal conduct”); and a “threat to border security”.

Keep in mind, such limitations run afoul of what Congress said in the INA, which is itself at the heart of the judge’s order in Texas that is currently on appeal.

Why would the administration ignore what Congress told it to do? The secretary explains:

The fact an individual is a removable noncitizen ... should not alone be the basis of an enforcement action against them. We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country's well-being require it.

Forget what Congress says. Did you not hear the man? “Justice and our country's well-being require” ICE to ignore the legislature’s mandates.

In any event, aliens pose a threat to border security per the Mayorkas memo if: “(a) they are apprehended at the border or port of entry while attempting to unlawfully enter the United States; or (b) they are apprehended in the United States after unlawfully entering after November 1, 2020”.

Thus, all those millions of aliens who were apprehended entering the United States illegally at the Southwest border since Joe Biden took office are, under the Biden administration's own definition, “threats to border security”.

Consequently, and notwithstanding its assertions in its Budget Overview, ICE could never — absent some cataclysm or force majeure — “retain the ability to detain” those aliens who “present a threat to ... border security” with an ADP of 25,000.

Contrary to Supreme Court precedent, Joe Biden believes that he — not Congress — gets to establish the “policies pertaining to the entry of aliens and their right to remain here”. That’s bad enough. What’s worse is that when it comes to migrant detentions, his administration cannot even follow the arbitrary rules it, itself, has established. And that’s what’s driving the migrant surge.