DHS Can’t Just Release Illegal Migrants at the Border

Whether it is ‘expedited’ or ‘regular’ removal, the detention rules are strict

By Andrew R. Arthur on October 22, 2021

My last post explained that Border Patrol apprehended more illegal migrants at the Southwest border — 1.659 million according to unofficial reports — in FY 2021 than in any year in history. Sixty-one percent were expelled under Covid-related CDC Title 42 orders, leaving about 647,000 aliens who weren’t returned. The Biden administration has reportedly released more than 160,000 illegal migrants into the United States, though the actual number is likely much higher. But DHS has no authority to release the vast majority of those illegal migrants.

Before I explain why, though, this analysis will cite to several statutory provisions. Those congressional statutes set the rules for which aliens must be arrested, which must be detained, and under what terms they may be released. When it comes to such “applicants for admission”, you see, Congress makes the rules, and the executive branch must follow them.

Parole and Biden’s Proposed Regulatory Change

Last week, the Center filed a comment in response to a regulatory change proposed by the Biden administration that (among other things) would allow DHS to release illegal migrants under an extremely limited congressional grant of authority known as “parole” whenever DHS concludes “detention is unavailable or impracticable.”

The Center explained in depth (pp. 32 to 48 in its comment) why that proposal is in violation of that limited congressional authority.

Briefly, though, DHS can only release illegal migrants on parole one at a time, and even then, only for “urgent humanitarian reasons or significant public benefit”. Not because the administration has failed to request sufficient detention space from Congress to respond to the disaster at the border, as the Biden administration has done.

Again, Border Patrol apprehended an all-time high of 1.659 million aliens at the Southwest border last fiscal year. Despite this fact, the president’s FY 2022 proposed budget requests 1,500 fewer detention beds for ICE (which detains aliens apprehended at the border) than are currently funded, for a total of 32,500 detention beds per day.

To clarify, the administration wants to release illegal migrants it does not have the space to house (in violation of the Immigration and Nationality Act (INA)) and setting the stage to ensure that almost all of them are released by cutting the number of available detention beds.

Expedited Removal vs. Section 240 Removal Proceedings

In 1996, Congress did a major rewrite of the Immigration and Nationality Act (INA), which directly affected the processing of illegal migrants at the border.

Among the changes, Congress eliminated the prior system under which aliens were placed into “exclusion” proceedings if they were apprehended at the ports of entry or when attempting to enter illegally across the border, or into “deportation” proceedings that provided more due process rights if they had affected an “entry” into the United States (legally or otherwise).

In the place of that dual-hearing scheme, Congress created one unified “removal” proceeding for both aliens seeking admission and those who had been admitted but who had become subject to removal, found at section 240 of the INA.

Those “section 240 removal proceedings” are presided over by an immigration judge, who issues a decision at the end of the hearing determining whether the alien is (1) removable, and (2) eligible for any immigration relief (like a green card) or protection (like asylum).

At the same time, however, Congress also created “expedited removal” proceedings, found at section 235(b)(1) of the INA. Expedited removal allows DHS to quickly deport any alien apprehended at the border or the ports whom an immigration officer determines has only fraudulent admission documents (like a passport and visa) or no documents at all.

Illegal migrants who are apprehended by Border Patrol after entering illegally are subject to expedited removal because they lack proper admission documents (that is why they are entering illegally).

The only exception to that quick deportation regime occurs when the alien claims a fear of persecution if returned, or affirmatively requests asylum. In that case, the alien is sent for an interview with an asylum officer at USCIS to determine whether the alien has a “credible fear” of persecution or torture if removed.

Under the current regulations, if the alien is found to have a credible fear, the alien is placed into section 240 removal proceedings to apply for asylum. If no credible fear is found, the alien is to be removed.

As a (relevant) aside, the regulatory change that the Biden administration is proposing would allow asylum officers to keep those cases and adjudicate the aliens’ asylum claims. The Center explained at length in its comment how that proposal would invite fraud, increase the number of aliens attempting to enter illegally, and lead to aliens being granted asylum (and placed on a path to citizenship) in error.

DHS’s Choice of “Expedited” or “Regular” Removal for Aliens Apprehended at the Border

When DHS apprehends an illegal migrant at the border, it has a choice of whether to place the alien into expedited removal proceedings or into more formal section 240 removal proceedings. That choice is dependent on the ground of inadmissibility the alien is charged with.

DHS can charge illegal migrants with removability under either section 212(a)(6)(A)(i) of the INA (alien present without admission or parole) or section 212(a)(7)(A)(i)(I) of the INA (alien seeking admission without proper documents).

As noted, expedited removal is available only for aliens seeking admission without proper documents. So, if DHS wants to send an alien to section 240 removal proceedings, it processes the alien under section 235(b)(2) of the INA (which I will refer to as “regular removal”, to distinguish that process from expedited removal) and charges the alien with being present without admission.

You may ask why DHS would prefer to send an alien to those more formal section 240 proceedings. That answer is complicated, but choosing regular removal gives DHS options not available in expedited removal.

Aliens who are processed for regular removal after being apprehended at the border can be sent back across the border to await their section 240 removal hearings, pursuant to section 235(b)(2)(C) of the INA. That option is not available in expedited removal.

If that sounds familiar, it’s because section 235(b)(2)(C) was the authority the Trump administration relied on when it implemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Under MPP, illegal migrants were returned across the border to await section 240 removal hearings.

As I will explain below, however, it appears that the Biden administration is utilizing regular removal for a much different, and contrary, reason: To release illegal migrants en masse into the United States.

Why the Biden Administration Claims It Wants to Expand Release on Parole

The Biden administration’s proposal to expand the availability of parole is premised on its claim that it wants to place more aliens into expedited removal proceedings, but can’t because (1) it lacks the detention space to hold them, and (2) the current regulation governing parole of aliens in expedited removal proceedings is too “narrow[]” (this is an oversimplification, but you get the gist).

Congress made clear in the expedited removal provisions that illegal migrants are supposed to be detained: Detained when they are apprehended, detained while awaiting a credible fear interview and if found to have a credible fear, detained until their asylum claims can be heard.

The current regulation governing release on parole for aliens in expedited removal reflects those mandates. It allows aliens to be released on parole only when “parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.”

As of the end of August, CBP had placed fewer than 72,000 of then-583,000 aliens it had “encountered” at the Southwest border and processed under the INA (that is, not expelled under Title 42) into expedited removal proceedings. The other 511,000 aliens were processed under the regular removal process and, apparently, released into the interior of the United States.

That’s because the Biden administration believes that aliens who are processed under the regular removal process — again, to be placed into section 240 removal proceedings — can be released. That is in error.

Detention Mandate for Illegal Migrants Processed Under Regular Removal

Much like in the section 235(b)(1) expedited removal process, Congress included a detention mandate for illegal migrants apprehended at the border who are processed for regular removal under section 235(b)(2) of the INA.

Specifically, section 235(a)(1) of the INA states:

An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival ...) shall be deemed for purposes of this chapter an applicant for admission. [Emphasis added.]

In turn, section 235(b)(2) of the INA provides:

Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for proceeding under [section 240 of the INA]. [Emphasis added.]

The exceptions apply to aliens in expedited removal, stowaways and crewmen, and aliens who are returned across the border to await section 240 removal proceedings. With those exceptions, Congress directed that aliens apprehended at the border after entering the United States illegally be detained throughout the regular removal process.

Warrantless Arrests and Release on Bond

The Biden administration is apparently relying on the arrest and detention provisions in section 236(a) of the INA to release illegal migrants processed for section 240 removal proceedings. By its terms, however, section 236(a) of the INA does not apply to most illegal migrants apprehended at the border.

Section 236(a) of the INA gives DHS officers authority to arrest aliens on warrants. After those aliens are arrested, DHS can continue to detain them, or release them on bond or conditional parole.

The problem is that most illegal migrants who are apprehended are arrested without warrant, in “warrantless arrests”. Simply put, Border Patrol agents do not seek warrants to arrest migrants they see or know to have entered illegally at the border, because that would allow those aliens to abscond.

Congress gave Border Patrol agents the authority to make such warrantless arrests in section 287(a)(2) of the INA. It states, in pertinent part:

Any officer or employee of the Service ... shall have power without warrant- to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation ... or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.

As a formality, agents and officers will often subsequently issue a “Warrant for Arrest of Alien”, but that does not convert a warrantless arrest into an arrest on warrant. You can’t “unring” the bell.

Releases of aliens arrested without a warrant apparently proceed under 8 CFR § 287.3(d) (“Disposition of cases of aliens arrested without warrant”), which states:

Unless voluntary departure has been granted ... a determination will be made within 48 hours of the arrest, except in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time, whether the alien will be continued in custody or released on bond or recognizance and whether a notice to appear and warrant of arrest as prescribed in 8 CFR parts 236 and 239 will be issued.

That provision would appear to allow DHS to release illegal migrants en masse, as it appears to have been doing in recent months, but two points are in order.

First, the interim rule implementing this regulation makes no mention of the detention mandate in section 235(b)(2) of the INA, calling reliance on that regulation in border cases into question. Second, illegal migrants arrested without warrant at the border more properly fall within the more specific subsection (b) in that regulation, which states:

Determination of proceedings. If the examining officer is satisfied that there is prima facie evidence that the arrested alien was entering, attempting to enter, or is present in the United States in violation of the immigration laws, the examining officer will refer the case to an immigration judge for further inquiry in accordance with 8 CFR parts 235, 239, or 240, order the alien removed as provided for in section 235(b)(1) of the Act ... or take whatever other action may be appropriate or required under the laws or regulations applicable to the particular case.

Nothing in that provision suggests that issuance of a subsequent arrest warrant is appropriate, or that release of such aliens by DHS under section 236(a) of the INA is an option.


Thus, if DHS decides it is necessary or appropriate to release an alien arrested without a warrant at the border, regardless of whether that alien is processed for expedited removal under section 235(b)(1) of the INA, or regular removal under section 235(b)(2) of the INA, the only authority available to do so is the parole provision in the INA.

In other words, DHS can only release illegal migrants “on a case-by-case basis for urgent humanitarian reasons or significant public benefit” — not because detention is unavailable or impracticable, as the Biden administration proposes, and not en masse as it has been doing, under an incorrect reading of the release authority in section 236(a) of the INA.