CBP’s statistics on the number of illegal migrants apprehended at the Southwest border in December are late — again — but on January 19, Fox News reported that encounters there were up in that normally slow travel month, to more than 178,800 from fewer than 174,000 in November. Most shockingly, however, that report revealed that the agency released more than 55,000 of those migrants into the United States. The Biden administration is dismantling the immigration system before our eyes.
The Fox reporting is based upon disclosures that the government is required to make under Texas v. Biden, a case that I have analyzed extensively in the past. At issue there is whether DHS erred in its terminating the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.
DHS Is Required to Detain Illegal Migrants — Unless They Are Paroled or Returned to Mexico. It would be more correct to state that Texas is facially about DHS’s attempted termination of MPP, but factually the case has much more to do with how the Biden administration is handling the ongoing disaster at the Southwest border.
Under section 235 of the Immigration and Nationality Act (INA), DHS has two options when it encounters aliens at the border who either entered illegally or sought admission at the ports without proper documents.
First, section 235(b)(1) of the INA enables DHS to process those illegal migrants for “expedited removal”, under which they can be removed without appearing before an immigration judge, unless the alien claims a fear of harm upon return or requests asylum.
If aliens in expedited removal do claim fear, they are interviewed by an asylum officer to determine whether they have a “credible fear” of return. If the asylum officer makes a positive credible fear finding (which usually happens, because the standard is low), the alien is placed into removal proceedings before an immigration judge to apply for asylum.
Alternatively, under section 235(b)(2) of the INA, DHS can skip expedited removal, charge those aliens with inadmissibility, and place them directly into removal proceedings.
Regardless of whether those migrants are processed under section 235(b)(1) of the INA for expedited removal or section 235(b)(2) of the INA for regular removal, however, they are supposed to be detained throughout the entire process — from apprehension to removal or admission.
There is an exception to that detention mandate, which allows DHS to “parole” inadmissible aliens under section 212(d)(5)(A) of the INA. Parole is a very limited authority that Congress has provided to DHS, and it enables the agency to allow inadmissible aliens to enter the United States without being formally admitted. In this context, those aliens are released from custody while their cases are pending.
How “limited” is parole? Section 212(d)(5)(A) allows DHS to parole aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit“. Those restrictions mean, as the Fifth Circuit held in its first decision in Texas, that DHS cannot simply release aliens en masse into the United States on parole.
By the way, above I explained that parole allows DHS to release aliens “while their cases are pending”. That is how it is supposed to work, but in a recent response to an inquiry from Sen. Ron Johnson (R-Wisc.) DHS Secretary Alejandro Mayorkas explained that his department is not actually placing paroled aliens into removal proceedings until after their parole is revoked, meaning they are simply freed until then.
In the case of migrants apprehended at a land border who are processed for regular removal proceedings under section 235(b)(2) of the INA, however, DHS actually has a third option: Send them back across the border to await their removal hearings, authority Congress gave the department in section 235(b)(2)(C) of the INA.
The Issues in Texas, and the Court’s Reporting Requirement. It was on that section 235(b)(2)(C) authority that the Trump administration premised Remain in Mexico, and it is the reason that Texas focuses on MPP. Simply put, the court held that DHS can detain illegal migrants, or it can parole them one at a time, but if it is unable to do either, the Biden administration can’t take MPP off the table.
To ensure that his order enjoining MPP’s termination was being enforced, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas placed certain reporting requirements on DHS.
Specifically, on the 15th of every month, the government was required to tell the court:
- How many aliens were encountered the previous month at the Southwest border.
- How many of those aliens were expelled under CDC orders issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic, under section 235 of the INA, “or under any other statute”;
- How many aliens DHS could detain and how many it is detaining;
- The total monthly number of illegal migrant “applicants for admission” under section 235 of the INA;
- The total monthly number of those “applicants for admission” under section 235 of the INA who were paroled into the United States; and
- The total monthly number of such “applicants for admission” under Section 235 of the INA who were released into the United States, on parole or otherwise.
As noted, the Fox News article was based on the latest government report to the court, which was filed a day early on January 14.
The Government’s January 14 Report. That latest government report reveals that in December, Border Patrol agents at the Southwest border apprehended 170,186 illegal migrants, which is up 2.5 percent from just fewer than 166,000 in November.
More saliently, however, that means that Border Patrol’s apprehensions at the Southwest border more than doubled the previous monthly record for December (statistics date back to FY 2000), set in 1999 when agents apprehended 71,252 illegal migrants there.
Of the migrants who were apprehended by Border Patrol agents, just short of 94,000 were processed under the INA; the remaining 76,283 were expelled under Title 42.
CBP officers (CBPOs) encountered an additional 8,654 aliens seeking admission at the Southwest border ports, 2,306 of whom were expelled under Title 42, while 6,348 were processed under the INA.
Just 6,881 of all of those aliens encountered by CBPOs and Border Patrol agents at the Southwest border in December were removed from the United States.
As for detentions, on a daily average, 13,385 of the migrants apprehended by Border Patrol were in custody — although, given the numbers, that was likely a rolling average, with a large proportion of them being released after a brief stay in detention.
On the other hand, of the 170,000-plus migrants apprehended by Border Patrol in December, 18,270 were paroled into the United States, and 32,836 others were issued notices to appear (“NTAs”, the charging documents in removal proceedings, which are like a criminal indictment), and released on their own recognizance.
For the aliens encountered by CBPOs at the ports, 4,520 were released — 3,816 on parole with NTAs, 704 on what the government termed “parole disposition”, and five who were paroled because ICE declined to detain them.
Implications. Put plainly, this is a disaster, and one that will simply encourage other foreign nationals to enter the United States illegally.
Just 1,889 of the illegal migrants encountered by Border Patrol agents and CBPOs — 1.1 percent of the total number of migrants encountered by CBP at the Southwest border in December — were removed via expedited removal. DHS doesn’t even seem like it is trying to follow the roadmap Congress laid out for it.
And, while about 45 percent of the total number of aliens encountered by CBP at the Southwest border in December were expelled under Title 42, you can more or less expect many of them to try again until they, too, get in.
Most troubling, however, is the fact that 55,626 illegal migrants encountered by CBP at the Southwest border in December were simply released. As noted, every migrant processed under the INA — be it section 235(b)(1) or (b)(2) — is supposed to be detained. In December, DHS instead let more than half of them go.
This is unsustainable, and not just at the border. According to the Transactional Records Access Clearinghouse at Syracuse University, through December, there were nearly 1.6 million cases pending on the dockets of the nation’s approximately 580 immigration judges. That’s up from just over one million in FY 2019.
More than 35,600 illegal migrants encountered by CBP at the Southwest border were issued NTAs, so that they soon will appear on the immigration courts’ dockets, too. Extrapolating out, that suggests that immigration judges will have to deal with almost 440,000 new Southwest border cases in a year.
Even that does not take into consideration the 18,270 migrants who were apprehended by Border Patrol but who were simply paroled without even receiving an NTA. It is questionable whether Judge Kacsmaryk is going to allow DHS to get away with that for long, and if he does get fed up, those cases would go to the courts’ dockets, too.
Of course, unless something changes quickly, the number of new cases will far exceed 440,000 annually; as noted, December is not traditionally a month in which most migrants choose to enter illegally. CBPOs and agents at the Southwest border could be dealing with 250,000 to 300,000-plus illegal migrants in May, when travel season gets into full swing.
That will bring border enforcement, and the immigration court system, to a crushing halt.
Last March, Mayorkas complained that the situation at the border was “challenging” because the Trump administration had “dismantled” the immigration system “in its entirety”. PolitiFact rated that complaint as “half true” despite the fact that it made no sense at all. Whether you liked Trump’s border policies or not, they were much more effective than anything that has replaced them.
Now, however, it appears that this was simple “projection” on the secretary’s part. By releasing migrants who are supposed to by law be detained, ignoring the limits Congress placed on parole, and simply turning inadmissible aliens loose in the United States without even charging them, the Biden administration is, effectively, dismantling the immigration system, and border security with it.