Title 8 apprehensions of inadmissible aliens at the Southwest border (i.e., not those under the now-lifted Title 42 orders).
On July 18, CBP put out its latest “Nationwide Encounters” statistics, a compendium of the aliens apprehended by Border Patrol agents along all U.S. borders plus aliens deemed inadmissible by CBP officers in the agency’s Office of Field Operations (OFO) component at all U.S. ports of entry (collectively known as “encounters”). The good news is that Border Patrol apprehensions at the Southwest border last month dropped below 100,000 for the first time since February 2021. The bad news is that, with the end of Title 42, “Title 8 apprehensions” are nearing records, and the worst is likely yet to come.
Border Patrol Apprehensions. Starting with the good, Border Patrol agents at the Southwest border apprehended 99,545 illegal entrants last month, as noted the fewest number of apprehensions there since February 2021 (97,643) — not coincidentally Joe Biden’s first full month in office.
Of those nearly 100k apprehensions, almost 34,000 were Mexican nationals, and 22,246 were from the “Northern Triangle” countries of El Salvador (2,042), Guatemala (9,547), and Honduras (10,657). The remaining 43,000-plus were from much farther abroad, including more than 12,500 Venezuelan nationals, 3,915 Colombians, 2,225 Brazilians, 2,513 nationals of India, and 2,122 Chinese nationals.
Ominously, nearly 11,500 apprehended illegal entrants were from “other” countries, a catchall for aliens who crossed the Southwest border illegally from countries other than the top-20 traditional sending countries. I’ll return to all of them, below.
The biggest mistake you can make when looking at these numbers (and the one that the administration will be peddling) is to conclude the border is returning to “normal” after being roiled by “hemispheric conditions” (“violence, food insecurity, severe poverty, corruption, climate change, the continuing effects of the COVID-19 pandemic”) that have fueled “the highest levels of irregular migration since World War II”.
Nothing could be farther from the truth. All of this is driven by bad Biden administration policies (with one exception I’ll also discuss below).
Start by putting those 99,545 apprehensions in June into historical context. Prior to March 2021 — Biden’s second full month in office when apprehensions exceeded 169,000 — apprehensions had never topped 100,000 in a single month except for May 2019 (132,856) — the height of the Trump-era “border emergency” — since April 2007 (when there were just fewer than 104,500 apprehensions).
At least Trump recognized he had a problem on his hands. As his then-DHS Secretary Kirstjen Nielsen explained in March 2019:
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.
The month Nielsen made that exasperated statement, Border Patrol agents at the Southwest border nabbed 92,833 illegal entrants — fewer than last month. If CBP had reached “peak capacity” with 7 percent fewer migrants than today, you can well imagine how bad things are there now.
And at least Trump had a response to that emergency, implementing the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Migrants subject to MPP were sent back to Mexico (where the government agreed to provide for them) to await their removal hearings, depriving them of the ability to live and work here while wending their way through the often years-long asylum process.
Biden has been fighting in federal court for more than two years to avoid having to return to MPP, and as I’ll (again) explain below, his “response” to this historical flood of illegal entrants has been much different and has exacerbated the problem.
“Recidivism” and “Title 8”. One thing you won’t hear the Biden administration talk much about anymore is “recidivism”, that is, the scenario in which illegal migrants are apprehended at the U.S.-Mexico line, expelled, and try to enter again.
It used to be tabbed in its border hymnal. Consider the following, from the CBP Monthly Operational Update one year ago: “The number of unique individuals encountered nationwide in June 2022 was 153,379, a 14 percent decrease in the number of unique enforcement encounters than the prior month.”
They were “unique individuals” because that number excluded recidivists, aliens who had been previously caught at some point in the prior 12-month period.
Recidivism was originally crafted as a metric to establish how good — or bad — a job CBP was doing at deterring illegal migrants, a key element of border security. If the recidivism rate was high — that is, there was a large percentage of aliens who were repeatedly expelled only to come back again and again — it demonstrated that DHS’s deterrence strategy was not working.
Through a shameless act of administrative legerdemain, however, the Biden administration fell back on its high recidivism rate (27 percent in FY 2021 compared to 7 percent in FY 2019) to argue, as in the June 2022 Operational Update, that its dreadful monthly border numbers weren’t as bad as they appeared.
To be fair to Biden, that FY 2021 recidivism rate was almost as high under Trump in FY 2020 (26 percent), and those repeat offenders were a direct result of what’s known as “Title 42”.
Beginning in March 2020, CDC issued a series of orders under the public health statutes in Title 42 of the U.S. Code in response to the Covid-19 pandemic, directing CBP to expel all aliens "encountered" (by both Border Patrol and OFO) at the land, and later coastal, borders of the United States.
While those Title 42 orders enabled DHS to deny entry to illegal migrants, they didn’t impose any consequences on those entrants except for expulsion.
Ordinarily, there are three main consequences for illegal entry: detention, mandated for illegal border crossers under section 235(b) of the Immigration and Nationality Act (INA); removal under section 241 of the INA, which carries a 10-year bar to readmission under section 212(a)(9)(C) of the INA; and prosecution for “improper entry” under section 275(a) of the INA, a misdemeanor for a first offense and a felony for repeated offenses.
Because aliens expelled under Title 42 weren’t processed for removal under the INA (which the Biden administration insists on calling “Title 8”, a reference to the INA’s statutory title in the U.S. Code as a way of suggesting that it’s just as good as Title 42 expulsion), they weren’t subject to those consequences, and thus repeatedly reentered and were expelled without consequence until they got through.
“Title 8 Apprehensions”. To be fair to the Biden administration, those recidivist entrants did bump up the number of illegal aliens apprehended monthly at the Southwest border (though nowhere near as much as DHS has suggested), but the administration ended Title 42 at 11:59 PM EDT on May 11. Consequently, all those illegal entrants apprehended in June are “Title 8 apprehensions” i.e., all encountered aliens not expelled under Title 42.
So, and again in the interests of fairness, let’s compare CBP’s June Title 8 apprehensions and its other Title 8 apprehensions in FY 2023 (year to date) to prior months and fiscal years.
Prior to March 2022, Border Patrol’s Southwest border Title 8 apprehensions never exceeded 100,000 since, again, April 2007, with the sole exception of May 2019 (both discussed above). They then exceeded 101,500 last March and jumped above 120,000 last May before declining to the low 100ks during the summer, and then hit 135,125 in September before skyrocketing above 170,000 in December.
Title 8 apprehensions thereafter declined to 63,000 in January and to 54,375 in February, before jumping again, to just short of 100,000 in April and then to approximately 140,000 in May — as migrants crossed just in advance of and directly after the end of Title 42.
In those terms, 99,545 Title 8 apprehensions in June don’t look so great. But it gets worse.
That’s because Border Patrol has already made more than 963,000 Title 8 apprehensions in the first nine months of FY 2023, putting it on track to make nearly 1.285 million Title 8 apprehensions in FY 2023.
That would be the largest number of Title 8 apprehensions at the Southwest border in any year since FY 2000, when agents apprehended a then-record 1,673,649 illegal entrants there.
Why FY 2023 Is the Worst Year Yet. I know — and for what it’s worth the administration also knows (though it’s not saying as much) — that 1.285 million apprehensions in FY 2023 would be much, much worse than those nearly 1.674 million were in FY 2000. That’s because of major demographic shifts in the population of illegal entrants in the past two decades.
More than 1.615 million of the illegal entrants apprehended at the Southwest border in FY 2000 — 98.2 percent of the total — were from Mexico, and fewer than 29,000 of them were “other than Mexicans” (OTMs). Nearly all those illegal Mexican entrants were single adults, mostly men, coming to work.
Border Patrol agents can process single adult migrants from Mexico in about eight hours and send them back across the border through the closest port of entry.
Of the 963,000-plus illegal entrants apprehended by Border Patrol and processed under Title 8 thus far in FY 2023, fewer than 128,000 (13.3 percent) are Mexican nationals and fewer than 79,000 (8.2 percent) are single adults from Mexico.
That means that 86.7 percent, or nearly 836,000 Title 8 apprehensions at the Southwest border this fiscal year are OTMs; just over 491,000 of them single adults, more than 268,500 (27.9 percent) adults travelling with children in “family units” (FMUs), and 76,000-plus unaccompanied alien children (UACs).
I have written repeatedly about the difficulties and complications inherent in the processing and care of OTM UACs and won’t belabor the point here. But let’s just say that more than 76,000 of them coming illegally over the Southwest border is bad all around, not least of all for the kids themselves.
Focusing just on the OTM single adults and families, those demographic groups are the most difficult for CBP to handle. Even if they are subjected to expedited removal and don’t make fear claims, agents must first process them, then get them a travel document, and finally arrange to fly them back home. That takes in a best-case scenario at least a week.
Of course, aliens aren’t going to pay smugglers thousands to tens of thousands of dollars simply to get them to the Southwest border, where they will be quickly removed. Consequently, those smugglers will tell them exactly what to say to ensure they aren’t subject to expedited removal and aren’t returned in a best-case scenario in a week.
Consequently, those aliens will either be transferred to ICE for detention, or — much more likely given the Biden administration’s overarching non-detention policies — simply released. As U.S. district court Judge T. Kent Wetherell II explained in his March 8 opinion in Florida v. U.S., those policies “have effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country”.
Which is why Border Patrol agents on the line are left dealing with and almost always releasing nearly 836,000 OTMs. Paying massive sums of money to a smuggler to come here is a smart economic bet.
And the further away those migrants are coming from, the better, which is especially true of the ones from countries with which the United States has prickly diplomatic relations, like Venezuela, Cuba, and China. Each is loath to provide passports for its deportable nationals here, and so here they’ll stay.
All that goes double for OTMs in family units. Remember how I said Border Patrol can process single Mexican adults in eight hours? Multiply that by 9.75 and you get to the 78 hours on average processing non-Mexican families takes. That’s why the Biden administration is fighting so hard in Florida to be allowed to simply hustle those aliens out the door in 30 minutes on parole without processing them at all.
The Worst Is Likely Yet to Come, or “Why May Was Always Biden’s Title 42 End Date”. The worst is likely yet to come at the Southwest border, and to explain why it’s important to note an interesting phenomenon: Both times the Biden administration announced it would be ending Title 42, first on April 1, 2022, and then on January 30, 2023, the target end date was always in May — May 23, 2022, and May 11, 2023, respectively.
Perhaps that’s pure coincidence and utter happenstance, but I doubt it, for two reasons. First, I’ve spent 32 years in and around the federal government, and nothing happens in D.C. by coincidence.
Second, and more importantly, May is historically the month in which the largest number of aliens cross the Southwest border illegally. The president’s border fecklessness has scrambled that trend in recent years, but generally migrants choose to cross before the summer gets too hot and when the weather is clement.
Which, on its face, would seem to make May the worst month for the administration to end the sole policy providing any border security. “On its face”, however, ignores an important human element, and that is “uncertainty”. Let me explain.
Every time there’s some change in border policy that might make actual entry difficult, smugglers sit back and try to find new loopholes, and entries fall. That’s why there was a “Trump effect” at the border when he took office in 2017, why entries fell after Trump implemented Remain in Mexico in mid-2019, and why apprehensions cratered (to just over 16,000) in April 2020, just after Title 42 started.
The inverse is true, as well, which is why Southwest border apprehensions have hit unprecedented levels since Biden came in and swept away all of Trump’s successful border policies starting in January 2021.
All, that is, except Title 42, which wasn’t a border policy per se. Had nothing else changed, I’d likely be writing about 300,000-plus entries in June. But something did change.
Just before Biden announced the end of Title 42, his administration revealed it was changing the asylum rules for aliens who crossed the border illegally, as my colleague Elizabeth Jacobs explained at the time.
Specifically, DHS announced in January — prior to the order that month ending Title 42 — that illegal entrants who “fail to seek protection in a country through which they traveled on their way to the United States will be subject to a rebuttable presumption of asylum ineligibility in the United States”.
The administration almost definitely knew this policy switch would breed uncertainty and give it breathing room once Title 42 ended at a period of the year when illegal entries surge. Kudos to them.
The rule implementing that proposal, formally called “Circumvention of Lawful Pathways” (which my colleague George Fishman has abbreviated as the “CLAP Rule”), was published on May 16, backdated to May 11, and it kind of does what DHS said it would do in January. With an emphasis on “kind of”.
In contrast to aliens who preschedule their illegal entries at the ports using the CBP One app (a separate Biden innovation I call the “CBP One app interview scheme”), whose fear claims will be processed under extremely loose, pre-existing asylum rules, the CLAP rule imposes a rebuttable presumption that illegal crossers between the ports who failed to seek asylum on the way here aren’t eligible for protection here.
That “rebuttable presumption” is not absolute, however. There are three exceptions to that rule, one for aliens who scheduled port appointments using the CBP one app, a second for those who applied for asylum elsewhere unsuccessfully, and a third for those who tried and failed to use the app.
Keep that last one in mind as I explain that migrants can rebut that presumption by showing they have an acute medical emergency, “faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture, or murder”, or were the victim of trafficking.
As I explained on July 10, DHS subjected 8,195 aliens to expedited removal processing under those CLAP rule standards between May 12 and June 13. Of those, 3 percent established they were subject to an exception, 8 percent rebutted the presumption, and 88 percent (7,243 aliens) were subject to the presumption.
I’ll stop there briefly to note DHS only subjected a fraction of the migrants it apprehended in that period to expedited removal, despite DHS Secretary Alejandro Mayorkas’ vow in a May 11 White House press conference that: “The vast majority of individuals will indeed be placed in expedited removal, and if they do not qualify, will be removed in a matter of days, if not weeks, from the United States.”
Back to the 88 percent of aliens who were subjected to the CLAP rule presumption: Just 46 percent of them were able to establish a credible fear of persecution or torture (meaning they would be allowed to go to immigration court in lieu of removal and would likely be released), compared to 72 percent of the ones who established an exception and 77 percent of the ones who rebutted the presumption.
That means that 4,207 of those aliens — 51 percent of the total — failed to pass credible fear and were presumably removed. Consider them the sacrificial guinea pigs in the smugglers’ sick experiments to test the new border rules.
I can almost guarantee you that increasing numbers of aliens in coming months will enter illegally, and that growing numbers of them will claim that they: (1) couldn’t access the CBP One app; (2) have an acute medical emergency; (3) face an imminent criminal threat to their lives and safety; or (4) were trafficked — and thus are not subject to the rebuttable presumption in the CLAP rule.
Of course, DHS doesn’t help matters by publishing a CLAP rule “fact sheet” explaining these exceptions. Smugglers may be cruel and sadistic criminals, but most know how to read.
Given all of that, don’t be surprised if apprehensions at the Southwest border exceed 1.285 million when the books are closed on this fiscal year.
What I Haven’t Said. What I haven’t said but will discuss later is that OFO encounters at the Southwest border ports hit their highest level in history, largely due to the CBP One app interview scheme. It’s just one of the tools the administration is using to funnel illegal migrants into the country and hide the border disaster it created. For now, June’s apprehension numbers are bad enough — and worse than they appear. You can bet they will get much worse once smugglers figure out the CLAP rule loopholes.