CBP Southwest Border Cases Plummet

Why ICE detention rates are so low and social distancing is easier for detainees

By Andrew R. Arthur on May 14, 2020

Topic Page: Covid-19 and Immigration

  • Last month, CBP encountered 16,789 aliens at the Southwest border, just 12 percent as many as in May 2019 (144,116).
  • Almost 91 percent of those aliens were expelled pursuant to HHS's Title 42 public health authority. The rest were processed under the INA.
  • Because the number of CBP encounters is down, ICE is not required to detain as many aliens in its custody. The number of aliens in ICE detention has dropped by more than 7,000 since March 1, down to 29,675 — 65.5 percent of the agency's FY 2020 detention target. This allows for more social distancing in ICE's 211 detention facilities.
  • Border Patrol continues to apprehend aliens suspected of illegal entry — including two who have tested positive for the Wuhan coronavirus, one with three prior Border Patrol apprehensions and possible drug cartel ties.

Lost amidst the din of shutdowns and reopenings (not to mention court decisions releasing aliens from immigration detention) resulting from the current Wuhan coronavirus pandemic, U.S. Customs and Border Protection (CBP) has released its latest numbers on Southwest Border Migration for April. The number of aliens encountered has plummeted to a two-year low, allowing U.S. Immigration and Customs Enforcement (ICE) to decrease the number of aliens in its custody.

Specifically, last month, CBP encountered 16,789 aliens at the Southwest border, just 15 percent as many encounters as in April 2019 (109,415) and just 12 percent as many as May 2019 (144,116). In fact, this is the lowest number of encounters since April 2017, when encounters (15,798) cratered to a five-year low following the inauguration of President Trump, and the second lowest in that five-year period.

Encounters include two separate subsets: aliens deemed inadmissible by CBP officers at the ports of entry and aliens apprehended after entering illegally by Border Patrol between the ports of entry. These categories now have their own subsets (as I have previously noted): apprehensions under the Immigration and Nationality Act (INA) and expulsions pursuant to the authority of the Department of Health and Human Services (HHS) under 42 U.S.C. § 265.

In an April 10 post, I explained how the federal government is using the authority Congress provided to HHS under Title 42 to restrict — through expulsion — the introduction of foreign nationals to the United States at the border for reasons of public health.

In April, Border Patrol apprehended 15,862 aliens along the Southwest border, of whom 14,416 were expelled under Title 42, and 1,446 were apprehended under the INA, down from 6,444 expulsions in April and 23,558 apprehensions last month (the expulsion order did not go into effect until March 20). In addition, CBP officers expelled seven aliens last month at the ports of entry, and deemed 465 aliens inadmissible under the INA.

How does CBP determine who makes the cut for action under the INA? Aliens who make credible fear claims or who withdraw their applications for admission and return across the border are processed under the INA, while all other aliens are expelled (some across the border, and some third-country nationals to their home countries), under Title 42. CBP is likely rapidly processing those credible fear claims under procedures that I detailed in a February post.

The more aliens expelled under Title 42 and removed under the INA, the fewer new aliens ICE will subsequently have to detain. As of May 4, the number of aliens in ICE detention had dropped by more than 7,000 since March 1, down to 29,675 (as of April 25). In fact, the agency is detaining just 57 percent as many aliens as in May 2019 (52,398), and 65.5 percent of its FY 2020 detention target (45,274). This facilitates "social distancing" among the aliens who are detained in the agency's 211 detention facilities.

CBP's ability to expel aliens pursuant to Title 42 will likely last until the current pandemic is over — or until a federal court deems the process illegal. As I have previously explained, however, HHS and CBP are on strong legal ground to institute and continue the process, given the broad grant of congressional authority in 42 U.S.C. § 265.

Not that broad grants of congressional authority have stopped certain federal district court and circuit court judges in the past from deeming this administration's immigration initiatives illegal, only to be reversed by the Supreme Court. The current pandemic, however, which affects Americans across the country and all walks of life, would likely give even those judges pause to restrict this authority. It is difficult to explain how you cannot go into a mall but those aliens have the "right" to enter the United States illegally and remain.

The big losers from all of this? Smugglers who prey on migrants and the cartels they pay. Not that they have not tried. On Tuesday, Border Patrol agents from the Yuma Sector apprehended five Bangladeshi nationals who had entered illegally, and on Monday, agents in the Laredo Sector working the I-35 checkpoint thwarted a smuggling scheme involving 49 aliens from Mexico, Guatemala, El Salvador, and Honduras (including four juveniles) — all illegally present in the United States — who were being transported in a stolen trailer. The U.S. citizen driver was arrested.

In fact, two foreign nationals with the Wuhan coronavirus have been apprehended in the past few weeks. Last Friday, Border Patrol agents from the Rio Grande City station arrested two suspected drug smugglers, both Mexican nationals, in Escobares, Texas. After transport to the station, one (who also had "possible drug cartel ties") tested positive for the illness. It was his fourth Border Patrol arrest, and agents also seized 200 rounds of .50 caliber ammunition (underscoring the fact that smuggling is a violent business).

In addition, on April 23, an Indian national with the coronavirus suspected of illegal entry was apprehended by Border Patrol with three Mexican nationals near Calexico, Calif. That individual was sent to ICE custody for treatment while the three Mexicans were returned.

These cases make clear the logic and need for CBP to continue to exercise its Title 42 authority. As long as you have to stay home, smugglers and migrants should, too.