Fox News: More than 99 Percent of Illegal Border App Users Get In

A threat to our constitutional order

By Andrew R. Arthur on April 17, 2023

On April 14, Fox News reported that more than 99 percent of all would-be illegal migrants who scheduled appointments at ports of entry for exemptions to expulsion under Title 42 using the CBP One app received them, and most if not all are allowed into the United States. Given that a huge number of aliens — 75,000-plus — either have been interviewed or have received appointments for such interviews through April 25, this is a massive end-run around Congress’ limitations on immigration to the United States — and a threat to our constitutional order.

Title 42 and the Exemptions. Beginning at the outset of the Covid-19 pandemic in March 2020, CDC issued a series of orders pursuant to Title 42 of the U.S. Code directing DHS to expel all illegal entrants in order to curb the introduction and spread of the novel coronavirus.

By the time the first of those orders was implemented, the Trump administration had already adopted policies that successfully deterred migrants from entering the United States illegally. Notably, however, then-candidate Joe Biden derided those policies during the 2020 presidential campaign in several position papers, most of which were overlooked by the press amidst the pandemic.

After winning the election but before being sworn in, however, Biden moderated his tone somewhat. In December 2020, the president-elect explained that, while he would end Trump’s border policies, he would only do so “at a slower pace than he initially promised, to avoid winding up with '2 million people on our border’”, and only after “’setting up the guardrails’ to find a solution to the immigration issue”.

After assuming office, however, Biden reversed course again, quickly terminating those Trump border policies while steadfastly refusing to do much to deter the flood of migrants that inevitably ensued.

The one Trump policy Biden kept (for a while) was Title 42, likely for two reasons. First, CDC premised its orders on public-health policy, not “border control” per se. Second, Biden himself relied on a series of ongoing Covid-related public-health emergency determinations to maintain costly Medicaid expansions and forgive student-loan debt. Ending Title 42 would have been seen as inconsistent, at best.

I say “for a while” because Biden announced last April that he would end Title 42 effective May 23, 2022, notwithstanding the fact that DHS had warned that doing so would more than double illegal entries.

Spurred by concerns about the fiscal costs of such a migrant surge, a group of states sued CDC in federal court in Louisiana for the right to be heard before Title 42 ended. On May 20, the judge in that case (CDC v. Louisiana) enjoined the end of Title 42.

But then, in November, a different federal judge (this one in U.S. district court in D.C.) enjoined and vacated Title 42. Before that order could take effect, however, the Louisiana plaintiffs convinced the Supreme Court to stay that order in late December (in a case captioned Arizona v. Mayorkas for jurisdictional reasons).

The problem is that federal courts have only limited authority to force the executive branch to comply with orders enforcing the immigration laws (even the justices cannot compel the administration to remove or detain any given alien, for example), and consequently, the number of illegal entrants expelled under Title 42 has been in a steep decline since Biden took over.

An increasing refusal to expel illegal migrants under Title 42 has not been the only way in which the Biden administration has dodged enforcement of those CDC orders, however.

Starting at some point last year, Biden’s CBP began allowing nongovernmental organizations (NGOs) to schedule appointments at the Southwest border ports of entry for would-be illegal migrants claiming that they should be “excepted” from the Title 42 process on humanitarian grounds. Just over 23,000 aliens were scheduled by NGOs for Southwest border port appointments in December, for example.

Then on January 5, the White House announced it would be replacing that ad hoc NGO scheduling scheme with a new protocol, one that allowed inadmissible aliens to schedule port appointments themselves though the CBP One app.

The CBP One app actually dates to October 2020, during the Trump administration, and was created to facilitate lawful transit into the United States, as the Privacy Impact Assessment for the app makes clear.

The app has now mutated under the Biden administration, as noted, to be used by facially and admittedly inadmissible aliens, with no right to enter whatsoever.

Fox News. Which brings me to the April 14 Fox News’ report, which explains:

More than 75,000 applications have either been carried out or scheduled until April 25, a CBP spokesperson told Fox News Digital this week. The spokesperson said that when appointments are opened up, they are filled within a matter of minutes.

But of those migrants who have had their appointments, the spokesperson said that fewer than 1% have been found not to have met the exception criteria. It means that the overwhelming majority of those who secure an appointment with the app are approved for an exception then moved into Title 8 processing — which is the regular authority for immigration removal proceedings for migrants without documents.

From there, migrants who are given the exemption from Title 42 can be released into the U.S. with a Notice to Appear, paroled into the U.S., or in some cases removed via expedited removal.

It is not entirely clear what exceptions to Title 42 Biden’s DHS is applying, but they logically pertain to “other than Mexican” (OTM) migrants whom the Mexican government refuses to accept back or whom the administration opts not to send back, based on some sort of undisclosed criteria.

The Mexican government is not required to except any migrants who have entered the United States illegally, aside from its own nationals (whom it is under international obligations to receive).

Of course, the Trump administration was able to strong-arm Mexico City into taking back nearly all (more than 87 percent) of the migrants it expelled under Title 42, including most of the OTMs.

The Biden administration, however, has taken a much weaker posture in its negotiations with Mexico, and consequently the only OTMs that DHS is now able to expel at any scale are single adults from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

Of the fewer than 72,600 migrants encountered by CBP at the Southwest border in February and expelled under Title 42, for example, more than 90 percent (65,814) were Mexican or nationals of the Northern Triangle countries, almost exclusively single adults.

The Biden administration asserted that it had convinced the Mexican government to accept nationals of Venezuela, Nicaragua, Haiti, and Cuba who entered illegally after failing to apply for parole under a program that the White House also announced on January 5, and of the 2,050 nationals of those countries Border Patrol agents apprehended in February, 1,400 (just over 68 percent) were expelled.

That means that more than 31 percent of those illegal migrants were not expelled, and logically would have received some sort of exception.

Fox News refers to “some cases” in which aliens granted exemptions after CBP One interviews at the ports are “removed via expedited removal”, but that doesn’t make much sense. There is no reason why CBP would grant an illegal migrant a Title 42 exclusion exception only to quickly remove that alien from the United States. Both processes — Title 42 exclusion and expedited removal — accomplish the same goal, that is, expelling the alien from the United States.

A Threat to Our Constitutional Order. The 99 percent Title 42 exemption grant-rate thus strongly suggests — as my colleague Elizabeth Jacobs posited in January after the White House rolled out its new border plans — that “CBP One ... is designed to hide mass illegal immigration from public view — but not discourage it”.

Not to be dramatic, but the Biden administration’s flouting of the limits that Congress has placed on immigration to the United States in this manner poses a real and present threat to our constitutional order.

As the Supreme Court has explained:

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]

That statement is almost 70 years old but is still the law.

Congress has, indeed, given the executive branch the authority to (1) inspect aliens at the ports of entry; and (2) parole inadmissible aliens who were inspected at the ports of entry into the United States.

Congress has tightly circumscribed that parole authority, however, because succeeding administrations have abused it, as my colleague George Fishman has explained. The parole of tens of thousands of illegal entrants per month — and all these aliens are illegal entrants, regardless of whether they crossed the border with inspection or without it — exceeds that statutory parole power.

And Congress has never, as U.S. district court Judge T. Kent Wetherell II recently held in Florida v. U.S., given the president the power to “release [those aliens] into the U.S. with a Notice to Appear”, as Fox News reported it is doing.

A closely divided Congress — like the current one — may struggle to impede such constitutional abuses (and certain members may accede to them), but they set a dangerous precedent. In essence, it would become a “legislature” in form only, passing laws that have no practical effect beyond that which the executive chooses to give them — or not.

Even those Americans who believe hundreds of thousands of illegal migrants should be allowed to enter and resettle here indefinitely each year, in excess of the limits Congress has set, should be concerned about what the administration is doing at the Southwest border. The Constitution protects us all — but only if we protect it first.