While you must dig to find it, CBP discloses the number of illegal migrants it has apprehended and released at the Southwest border in FY 2022 on a webpage captioned “Custody and Transfer Statistics”. Well, partially discloses, at least, because while that page reveals that more than 553,000 aliens apprehended by Border Patrol agents have been released this fiscal year, it doesn’t include port encounters or unaccompanied alien children. That page also indicates that hundreds of thousands of other illegal migrants were transferred to ICE for detention — and that agency doesn’t hold most such “immigration violators” for long. All told, about 2.2 million aliens have exploited Biden’s border policies — thus far.
DHS Is Supposed to Detain All Illegal Entrants. Under the Immigration and Nationality Act (INA), DHS is required to detain every illegal entrant, as well as all other inadmissible aliens stopped at entry and deemed inadmissible. Due to resource constraints, various administrations have struggled to comply with that congressional detention mandate, but unlike President Biden, at least his predecessors tried.
As I explained on September 8, of the more than 3.5 million aliens CBP encountered at the Southwest border under the Obama and Trump administrations between FY 2013 and FY 2019 who were subject to detention, 1.195 million-plus (57 percent) were detained and held, and an additional 22 percent were detained for some period and released. Just 749,013 (21 percent) were never detained.
By contrast, just 10 percent of the more than 525,000 aliens encountered by CBP in FY 2021 who were processed for removal (most under the Biden administration) were detained, while 26 percent were detained and released and nearly two-thirds — 64 percent — were never detained. While detention was the rule under his two predecessors, it’s far and away the exception under Biden.
“USBP Monthly Southwest Border Encounters by Processing Disposition”. Which brings me to the CBP numbers, and specifically a subcategory captioned “USBP Monthly Southwest Border Encounters by Processing Disposition”, which explain what DHS did with the aliens Border Patrol agents have caught at the U.S.-Mexico line this fiscal year.
Through the end of August, Border Patrol agents apprehended nearly 2 million aliens who entered the United States illegally over the Southwest border in FY 2022. (The slightly higher number widely reported in the press includes inadmissible aliens at ports of entry.) About 49 percent were expelled under CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, leaving more than a million others who were processed for removal under the INA.
All of those aliens would have been subject to “expedited removal”, which allows DHS to quickly deport illegal migrants stopped at entry without placing them into removal proceedings before an immigration judge. And yet the “Processing Disposition” statistics show that only about 9 percent (93,546) of those illegal entrants were put through the expedited removal process.
That is not to say that those aliens were actually removed. Aliens in expedited removal proceedings who request asylum are interviewed by an asylum officer from USCIS to determine whether they have a “credible fear” of persecution or torture if they're returned home. That interview is basically a screening process to determine whether they may be eligible for asylum, and if those aliens receive a “positive credible fear determination”, they are then allowed to remain to apply for asylum.
Some 25,455 other aliens apprehended by Border Patrol at the Southwest border in FY 2022 — each of whom had been previously removed — were subject to reinstatement of their prior removal orders.
As with aliens in expedited removal, an alien with a reinstated final order claiming a fear of return must also be interviewed by an asylum officer to determine whether they have a “reasonable fear” of return. If they pass that screening, they are allowed to remain to apply for withholding of removal, a protection akin to asylum albeit with a higher standard of proof and fewer benefits.
The CBP statistics don’t reveal how many of those aliens in expedited removal or with reinstated orders of removal were actually removed, and how many were allowed to remain to apply for asylum or withholding, respectively.
An additional 25,766 illegal entrants — most if not all of whom are Mexican nationals — were allowed to voluntarily return back across the border without being formally removed. And, interestingly, 5,612 others were processed under the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, including 154 migrants in August.
It’s “interesting” because the Biden administration spent over a year in Texas v. Biden fighting a lawsuit filed by the states of Texas and Missouri to force it to reinstate the Trump-era MPP program, eventually winning the latest (but likely not the last) round in the Supreme Court on June 30 on technical grounds.
The High Court did not issue its final judgment in the case until August 1, however, and the U.S. district court judge hearing the case only lifted the injunction directing the administration to continue the program on August 8, so there were obviously line agents and supervisors who saw the effectiveness of Remain in Mexico and continued to implement it until the very end.
Illegal Entrants Released on Parole and “OR”. More than half of the million-plus illegal entrants apprehended by Border Patrol agents at the border who were not expelled under Title 42, however, were released — again, even though Congress requires DHS to detain all of them.
More than half of those released into the United States, just over 301,000, were issued Notices to Appear (NTA) and released on their “own recognizance” (OR). The NTA is the charging document in removal proceedings, similar to an indictment in a criminal case, and it instructs the alien to appear for a removal hearing in immigration court at a set time and date.
The problem is that DHS only has authority to release on OR aliens it has arrested with a warrant, under section 236 of the INA. Those aliens apprehended by Border Patrol — all of whom entered illegally — were warrantless arrests under section 287(a) of the INA, however, and there is no provision in the INA that allows DHS to release aliens arrested without warrants.
That fact, coupled with the fact that, again, Congress has stipulated that illegal migrants be detained, underscores the illegality of those 300,000-plus OR releases. While this was raised by the state plaintiffs in Texas, the Supreme Court punted the issue back to the lower courts to resolve.
Nearly 282,000 others were released by CBP on what it terms “Parole+ATD” — meaning parole under section 212(d)(5)(A) and/or “conditional parole” under section 236 of the INA, on some sort of “alternative to detention”, like electronic monitoring.
As with OR, DHS lacks the power to release illegal migrants apprehended at the border on conditional parole under section 236 of the INA. And while section 212(d)(5)(A) of the INA allows DHS to release inadmissible aliens, it can do so “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
The Fifth Circuit in Texas doubted the department would actually be able to release tens of thousands of aliens monthly “on a case-by-case basis”, and for its part the Biden administration asserted during that litigation that releasing aliens for whom DHS lacked detention space was a “significant public benefit” — a novel interpretation of the law to say the least. Those were two other issues that the justices left to the lower courts to resolve.
ICE Releases. That brings the total up to more than 583,000 illegal entrants who were apprehended at the Southwest border in the first 11 months of FY 2022 and released into the United States, and yet, it gets worse.
The CBP statistics show that nearly 261,000 other illegal entrants who were apprehended by Border Patrol agents at the U.S.-Mexico line were issued NTAs and detained, meaning that they were sent to ICE to be held pending removal proceedings.
In the first 11 months of FY 2022, ICE released 23,136 aliens identified as “immigration violators” on bond, 128,000-plus on OR, just over 4,900 on orders of supervision, and 73,775 on parole.
The ICE statistics don’t break those 239,570 releases down in terms of arresting agency (i.e., by CBP at the border compared to by ICE in the interior), but as DHS Secretary Alejandro Mayorkas explained in his (currently vacated) September 2021 “Guidelines for the Enforcement of Civil Immigration Law”, under this administration, at least: “The fact an individual is a removable [alien] should not alone be the basis of an enforcement action against them”.
Given that, ICE is not targeting many non-criminal aliens in the interior who are simply here illegally, and so most of those “immigration violators” released by the agency thus far in FY 2022 are aliens first encountered by CBP at the Southwest border, issued NTAs, and sent to ICE for detention.
Taking just half of those ICE releases this fiscal year as aliens first encountered by Border Patrol at the Southwest border adds nearly 120,000 more to the total number of illegal migrants set free by the Biden administration in FY 2022, bringing the total to somewhere around 700,000 this fiscal year alone.
Ports of Entry and Unaccompanied Alien Children. But wait — there’s more, because these statistics fail to capture either the number of aliens encountered by CBP officers at the ports of entry or unaccompanied alien children (UACs) apprehended there who were released.
Although it’s a CBP “Custody and Transfer Statistics” page, it provides no information about releases of inadmissible aliens at the Southwest ports. Despite that, court-ordered DHS disclosures in Texas reveal that CBP officers cut loose into the United States just over 102,000 inadmissible aliens in this fiscal year through the end of June (when the reporting requirement ended). That boosts the total number of illegal migrants at the Southwest border in FY 2022 whom DHS has released into the United States to more than 800,000.
On top of that, CBP has encountered more than 140,000 UACs at the Southwest border in FY 2022. Under a seriously flawed 2008 law, DHS must release UACs from “non-contiguous” countries (that is, every country other than Canada and Mexico) to the Department of Health and Human Services for placement with “sponsors” (usually their own parents or a close family member) in the United States.
Through the end of August, CBP has encountered nearly 114,500 UACs who weren’t Mexican or Canadian nationals at the Southwest border, again, nearly all of whom will be or have been released into the country.
2.2 Million — The Size of Boston, Detroit, and San Francisco, Combined. That brings total releases at the Southwest border in FY 2022 up around 920,000. All of them will be in the United States indefinitely, and many or most will be here forever.
That’s on top of nearly 260,399 illegal entrants Border Patrol caught and released at the Southwest border in FY 2021, 44,821 inadmissible aliens stopped at the ports there and released by CBP last fiscal year, and 120,930 aliens transferred by CBP to ICE for detention who were also released between February and the end of September 2021, all under the Biden administration.
Including them, the number of illegal migrants released under the Biden administration totals just fewer than 1.35 million, larger than the population of Dallas (America’s ninth-largest city) and more people than reside in seven U.S. states.
And, as noted, these estimates are on the low side — the real total likely approaches 1.5 million, not counting 389,000 “got-aways”, aliens who evaded Border Patrol agents and made it during FY 2021, or a half-million other such absconders in FY 2022.
Using a conservative estimate, the total number of illegal migrants who have exploited Biden’s border policies to live and work in the United States is now nearing 2.2 million — roughly the populations of Boston, Detroit, and San Francisco combined. If wealthy cities like D.C., New York, and Chicago are struggling to deal with the 11,000 released migrants border governors have sent them in recent weeks, imagine what will happen when the rest of us get our fair share.