Cooking the Border Books

Just in March, probably 60,000 illegals were released who should have been detained, though the real total is hidden

By Andrew R. Arthur on April 25, 2023

The Biden administration has released at least 2,020,522 Southwest Border migrants, based on the information publicly available. Now you can add to that total an additional 25,470 illegal entrants who were apprehended in March at the U.S.-Mexico line who we know were set free into the United States — though the real total likely tens of thousands more, as the administration cooks the books to hide its ongoing migrant disaster.

“Custody and Transfer Statistics FY2023”. That latest release figure comes from a CBP press release captioned “Custody and Transfer Statistics FY2023”, which is essentially a rolling tally of migrants either removed, transferred from that agency’s custody to another agency, or released onto the streets.

The figure itself is the sum of the 25,463 illegal entrants agents apprehended last month by Border Patrol released on their own recognizance (OR) with a Notice to Appear (“NTA”, the charging document in removal proceedings, collectively known as “NTA/OR”) plus the seven apprehended migrants “paroled” by agents into the United States and released on alternatives to detention (ATD, collectively called “Parole+ATD”).

Anyone familiar with the Biden administration’s egregious abuse of its limited border release authority may think that the “Parole+ATD” figure is a typo, given that in November more than 90,000 illegal migrants were released under that legally dubious policy.

It’s not, and suggests the administration is not eager to cross Judge T. Kent Wetherell II. He’s the judge assigned to a hear challenge by the state of Florida to the Biden administration’s border release policies, in a case captioned Florida v. U.S.

On March 8, Judge Wetherell vacated the administration’s policy of releasing illegal migrants en masse on Parole+ATD, although his order left DHS free to parole migrants under the restrictions Congress set forth in statute, that is, to parole aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

Last month, CBP processed nearly 77,000 migrants apprehended by Border Patrol at the Southwest border under the Immigration and Nationality Act (INA) — that is, as opposed to expelling them under Title 42 — and seven legitimate parole releases out of that population sounds about right, given how strict the statute is.

Not that DHS has any authority to release border migrants on their own recognizance with NTAs, either. In Florida, the administration argued it can release those aliens under its general arrest and release authority in section 236(a) of the INA, notwithstanding the congressional requirement (in sections 235(b)(1) and (2) of the INA) that migrants apprehended during illegal entry be detained.

Judge Wetherell noted that section 236(a) of the INA only applies to aliens arrested on warrant, while border apprehensions are warrantless arrests under a separate section of the INA (287(a)(2)), and that even if section 236(a) of the INA did apply, the more specific detention mandate in sections 235(b)(1) and (2) would trump the more general release authority in section 236(a).

That’s a lot of statutory citations, so let me state it more simply. Generally (and subject to exceptions), DHS officers and agents are required to obtain a warrant before they arrest aliens. Once those aliens are arrested, and with certain exceptions, DHS has discretion to detain those aliens, or alternatively release them on their own recognizance or on bond.

Border Patrol agents don’t know who’ll enter illegally, however, so it can’t prepare arrest warrants in advance. For that reason, Congress allows agents to arrest aliens entering illegally without a warrant.

Congress has also specifically stated that DHS has no discretion to release inadmissible alien “applicants for admission” at the ports of entry and borders (including illegal entrants), and that it must detain those aliens, regardless of any other provision (except for parole pursuant to its restrictive terms) under which they may be released.

So, even if DHS were to go back and issue an arrest warrant for illegal entrants initially apprehended without a warrant so it could release them (which, strangely, it was doing), Judge Wetherell held that it still had no discretion, aside from under the limits in the parole statute, to let them go.

Not to make this any more complicated, but the court also concluded that the administration has a general “Non-Detention Policy” for border migrants, which includes NTA/OR releases of aliens. Unlike the more specific Parole+ATD policy, however, that “Non-Detention Policy” was not a “discrete ‘agency action’” subject to judicial review.

In other words, NTA/OR releases under section 236(a) of the INA aren’t legal, but there’s nothing the court can do about it. Which explains why there were so many NTA/OR releases in March compared to parole releases.

The “Great Unknown”. Again, I know for certain that Border Patrol agents at the Southwest border released 25,470 illegal migrants in March. The “great unknown”, though, is how many other illegal migrants CBP encountered there were released by DHS.

“Encounter” in this context is a term of art used to describe illegal entrants apprehended by Border Patrol agents between the Southwest border ports of entry plus aliens deemed inadmissible by CBP officers in the agency’s Office of Field Operations (OFO) at those ports.

Not to belabor the issue, but Congress has stated that all aliens encountered at the Southwest border — both at the ports and between them — are supposed to be detained, from the moment they’re encountered until they’re either: (1) lawfully admitted; (2) granted “relief” from removal (generally asylum); or (3) removed.

In March, between Border Patrol and OFO, CBP encountered 191,899 aliens at the Southwest border. Of that total, 87,661 were expelled under Title 42, and 104,238 were processed under the INA.

If you take out the Border Patrol releases on Parole+ATD and NTA/OR, that leaves 78,768 aliens unaccounted for.

As Judge Wetherell noted in his opinion in Florida, while Border Patrol publishes statistics on the aliens it encounters at the Southwest border it then releases, OFO doesn’t.

He also explained that both Border Patrol and OFO transfer some of the aliens they encounter to ICE for detention and processing (CBO “book-ins”), some of whom ICE releases (likely most). And, while ICE publishes release statistics, those statistics don’t distinguish between aliens originally arrested by ICE officers and agents in the interior and aliens first encountered by CBP at the Southwest border who are transferred to ICE.

To be clear, if OFO and ICE wanted to reveal the number of Southwest border migrants they released each month, they could. In fact, when each was under a court order in Texas v. Biden to disclose those numbers, they did. That court order was lifted in August 2022, however, and they have subsequently refused to disclose those figures since last July.

OFO Southwest Port Encounters. In March, OFO issued 24,265 NTAs to aliens deemed inadmissible at the Southwest border ports, but it only transferred 396 aliens to ICE (all for credible fear determinations).

OFO doesn’t say whether it detained or released those 24,265 aliens. While its stats page has separate columns for both NTA detentions and releases, both state “0”. Those aliens likely were would-be illegal migrants who scheduled appointments for interviews at the ports through the CBP One App.

That app-scheduling process is a recent Biden administration initiative to hide the true scope of its alien releases at the Southwest border. It built off an earlier ad hoc process by which NGOs would schedule port interviews for aliens they believed shouldn’t be subject to Title 42 expulsion. Under both processes, nearly all aliens who were interviewed were either issued NTAs or paroled.

Judge Wetherell took CBP to task for releasing migrants into the United States on parole without first issuing them NTAs, which almost definitely explains the recent spike in NTAs being issued by OFO at the ports. In March 2022, just 2,826 aliens deemed inadmissible at the Southwest ports received NTAs.

OFO encounters at the ports increased 160 percent last month compared to March 2022, which would account for part of that rise in NTAs, but not enough to explain why CBP officers at the ports issued more than 8.5 times as many NTAs last month as in the same month one year before. The only logical reason is that those aliens were issued NTAs and given parole — which would explain why they were neither detained nor not detained (they were “paroled”, which is too cute by half).

CBP Transfers to ICE, Marshals Service, and HHS. Border Patrol reveals that it issued warrants of arrest and NTAs to 30,080 illegal migrants it apprehended at the Southwest border last month, but lists those aliens as “Detained”. Border Patrol doesn’t have its own long-term detention facilities, meaning those detained aliens went to ICE.

Separately, Border Patrol states it transferred 40,538 illegal migrants to other federal entities, including ICE, the Department of Human Services (HHS — likely all unaccompanied alien children (UACs) from “non-contiguous countries for that department to release to “sponsors” in the United States), and the U.S. Marshals Service (for federal prosecution).

In March, Border Patrol apprehended 9,076 UACs from non-contiguous countries, all of whom would have been sent to HHS. Subtract them from the 40,538 federal transfers, and you get 31,462 — 1,382 more aliens than Border Patrol reports it issued NTAs to and detained. Those aliens likely went to Marshals Service custody for prosecution of one sort or another.

Which raises the question of what ICE did with the Southwest border migrants who were transferred to its custody by CBP.

In its “Detention Statistics” spreadsheet, ICE reveals that it “booked in” 14,198 aliens who had been transferred by CBP in March — many fewer than the 30,080 illegal migrants Border Patrol asserted it detained last month. By contrast, ICE only booked in 7,999 aliens its agents and officers had arrested.

On average in March, 1,108 ICE detainees who had been book-ins from CBP were convicted criminals, 418 had pending criminal charges, and 16,492 (91.5 percent) were listed as “other immigration violators” — the latter non-criminal illegal migrants at the border and ports.

The total number of ICE book-ins from CBP in March was lower than the average number of ICE detainees who were transferred from CBP in ICE detention because some of those aliens were detained for some period. Likely not a long period, however.

By contrast, most aliens detained by ICE in March who had originally been arrested by that agency were either convicted criminals or aliens with pending criminal charges — 91.6 percent of last month’s average total population of 9,674. The remaining 8.4 percent were removable “just” on immigration grounds.

Thus, most of the non-criminal aliens detained and released by ICE in March had come from CBP.

In March, ICE bonded out 203 aliens who were non-criminal “other immigration violators”, and released 2,174 on OR, 35 on orders of supervision, and 9,233 on parole — 11,645 in total. Assuming that 91 percent of those ICE non-criminal alien releases were originally CBP book-ins, that would be 10,597 more border aliens who were released last month.

The Numbers Don’t Add Up. To recap, CBP encountered 104,238 aliens at the Southwest border in March who weren’t expelled under Title 42.

Border Patrol released 25,470 of them directly, 9,076 were UACs from non-contiguous countries who almost certainly went to HHS, 24,265 were aliens deemed inadmissible at the ports by OFO and issued NTAs (and almost definitely released), and 14,198 aliens were booked into ICE custody from CBP (and 10,597 of them — at least — were likely released).

That leaves some 31,229 aliens encountered by CBP at the Southwest border who were unaccounted for.

I note that Border Patrol also reports that 10,557 illegal entrants it apprehended at the Southwest border were subject to expedited removal, 2,506 were aliens who had previously been ordered removed whose removal orders were reinstated, 2,576 were voluntarily returned, and 5,662 hadn’t been processed when the reporting period expired.

There’s a big difference between being subject to expedited removal and being removed, but assuming that they were removed, that means that 21,301 Southwest border migrants were either removed or in the process of either being either removed, released, or detained by the time Border Patrol published its March numbers. That only leaves 9,928 unaccounted for.

There is no reason that DHS under the Biden administration doesn’t explain how many migrants at the Southwest border were removed, how many were detained, and how many were released — except that the answers likely make clear just how open the border is.

In March, DHS released 25,470 Southwest border migrants, almost definitely cut loose an additional 24,265 others, and likely let go at least 10,500 more — 60,235 aliens who by law should have been detained, but weren’t, in just one month. And that’s likely just the tip of the iceberg, but it’s almost impossible to un-cook the books on migrant releases — which is likely the way the administration wants it.