Have 70 Percent — or 85 Percent — of Illegal Migrants Been Released Under Biden?

Likely more. DHS Secretary Mayorkas ‘knows the data’ — and so do the smugglers.

By Andrew R. Arthur on January 12, 2024
No Trespassing

On January 4, DHS Secretary Alejandro Mayorkas appeared on Fox News’ “Special Report” with host Bret Baier, and made a stunning admission — of sorts. Baier asked Mayorkas: “Customs and Border Protection sources say that currently, they are releasing more than 70% of the migrants crossing every day and sometimes more than that number. Would that surprise you?” The secretary was cagey, responding: “It would not. It would not surprise me at all ... I know the data. And I will tell you that when individuals are released they are released into immigration enforcement proceedings.” But then on January 8, the outlet reported that Mayorkas told agents in a closed-door meeting in Eagle Pass, Texas, that the migrant-release figure was “above 85 percent”. What’s the real figure, and more importantly, what’s Mayorkas hiding?

Apprehensions, Expulsions, and Releases. Unfortunately, to answer these questions, we have to look at a whole lot of statistics.

According to CBP’s “Nationwide Encounters” web page, between February 2021 (President Biden’s first full month in office), and the end of November, Border Patrol agents at the Southwest border apprehended 6,006,715 aliens who entered the United States illegally.

It’s important to remember, however, that in February 2021, CDC orders first issued in March 2020 under Title 42 of the U.S. Code in response to the Covid-19 pandemic were still in effect, and would be until May 11, 2023.

Pursuant to those CDC Title 42 orders, Border Patrol agents expelled 2,396,672 aliens apprehended at the Southwest border between February 1, 2021, and May 11, 2023.

That leaves 3,610,043 aliens apprehended at the Southwest border who weren’t expelled under Title 42, but who instead were processed under the Immigration and Nationality Act (INA).

The INA is Title 8 of the U.S. Code, and consequently the White House and many in the administration prefer to call that act “Title 8”, in an apparent attempt to make it sound as effective as Title 42.

As I’ll explain, it’s not, but that’s what Mayorkas was referring to in stating, “when individuals are released they are released into immigration enforcement proceedings”. Those “immigration enforcement proceedings” are removal proceedings under section 240 of the INA, but even that part of the secretary’s statement is not completely correct.

Some 426,374 of those 3,610,043 illegal migrants were unaccompanied alien children (UACs), minors who were apprehended at the Southwest border without a responsible adult to care for them.

Under a poorly thought-out 2008 law, CBP must transfer the UACs it encounters from “non-contiguous” countries (every country other than Canada and Mexico) to the Office of Refugee Resettlement (ORR) at the Department of Health and Human Services (HHS) within 72 hours. ORR, in turn, releases nearly all those UACs to “sponsors” in the United States, many if not most of whom are also here illegally.

Data recently released in a report by DHS’s Office of Homeland Security Statistics (OHSS) reveals that between February 2021 and the end of September 2023 (the last month of FY 2023), Biden’s CBP transferred 356,314 UACs to HHS.

That does not account for the 22,656 UACs Border Patrol agents apprehended in October and November 2023, but that HHS transfer figure does include at least some of the 8,072 UACs who were stopped by CBP officers in that agency’s Office of Field Operations (OFO) at the ports between February 2021 and the end of September.

In any event, subtracting all of those UACs (both the ones transferred and removed) from Biden’s Title 8 Border Patrol total leaves 3,183,669 aliens who were apprehended at the Southwest border and processed under the INA between February 2021 and November 2023.

If 70 percent of them were released, as Mayorkas appears to admit, that’s 2.227 million new illegal aliens who have entered the United States since President Biden’s first full month in office. That’s not the actual figure, but fortunately, other OHSS statistics help to fill in the blanks, at least to a degree.

Those statistics show that between February 2021 and the end of September 2023, Border Patrol agents released 1,886,175 illegal entrants whom they apprehended at the Southwest border. Meanwhile, CBP’s Custody and Transfer Statistics web page reveals that agents released an additional 253,435 in October and November.

That means that Border Patrol agents have released a total of 2,139,610 illegal migrants whom they apprehended at the Southwest border during Joe Biden’s first 33 full months in office, or 67.2 percent of the total (excluding UACs). But that total is not complete, because I’m not done yet.

ICE Southwest Border Releases. According to OHSS, Border Patrol transferred 679,215 illegal migrants apprehended at the Southwest border to ICE for either detention, release, or removal between February 2021 and the end of September, while OFO transferred an additional 59,751 inadmissible aliens from the Southwest border ports to ICE during that period.

Unfortunately, DHS doesn’t publish figures on the number of aliens transferred by CBP at the Southwest border to ICE whom that agency thereafter released. But we still have some idea, thanks to court-ordered disclosures in Texas v. Biden, a state-led effort to force the Biden administration to reinstate the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

Those disclosures reveal that ICE released 119,673 aliens first encountered by CBP at the Southwest border between February and September 2021, 39,404 in October and November 2021, 19,173 in December 2021, 16,387 in January 2022, 15,974 in February 2022, 14,354 in March 2022, 7,782 in April 2022, 9,946 in May 2022, and 7,041 in June 2022, the last reporting month.

That’s 249,734 additional Southwest border aliens transferred by CBP to ICE who were later released by ICE. Notably, however, it includes not just aliens apprehended by Border Patrol, but also aliens deemed inadmissible at the Southwest border ports by OFO, so there’s more math — and a few assumptions — to come.

The OHSS statistics reveal that during that reporting period in Texas, February 2021 to June 2022, CBP (both Border Patrol and OFO) transferred 366,733 aliens encountered at the Southwest border to ICE. Thus, ICE subsequently released 68.1 percent of the aliens transferred to ICE by CBP for detention after CBP encountered them at the Southwest border during the reporting period.

That’s over and above the illegal migrants Border Patrol agents released directly, but if that February 2021 to June 2022 trend continued, and ICE released 68.1 percent of the 679,215 illegal migrants who were transferred by Border Patrol at the Southwest border between February 2021 and the end of September, that’s an additional 462,525 aliens who were released into the country under Biden.

Again, there are some (very reasonable) assumptions there, but that would all mean that, as of the end of November, Biden’s DHS (both ICE and CBP) released 2,818,825 of the 3,183,669 non-UAC aliens Border Patrol agents apprehended at the Southwest border who were processed under the INA into the United States — 88.5 percent of the total.

That’s higher than the 70 percent release figure Mayorkas conceded to Baier and more like the “more than 85 percent” number the secretary allegedly admitted to during those closed-door talks.

Please forgive both my math and my assumptions, but neither is really necessary. The secretary — as he admitted to Baier — “knows the data”. You, as taxpayers, are funding those stats and those releases, and therefore Biden’s DHS really should share it with you. But it won’t, because the administration doesn’t want you to know how bad this disaster really is — and how much worse it will get.

“Immigration Enforcement Proceedings”. As noted, Mayorkas told Baier that those migrants “are released they are released into immigration enforcement proceedings”. That’s largely, but not completely, true, and it’s definitely not as effective a deterrent as it sounds.

Take those 356,314 UACs who were encountered by CBP at the Southwest border between February 2021 and the end of September who, according to OHSS, were transferred to HHS.

Very few of them have been placed into removal proceedings under section 240 of the INA, and in fact — according to DOJ statistics — as of the end of FY 2023, fewer than 57,500 cases involving UACs were pending before immigration judges.

Then, there are the more than 682,000 aliens released by Border Patrol in FY 2022 and FY 2023 on “parole” under section 212(d)(5)(A) of the INA, and the approximately 94,000 others who were released with “Notices to Report” (NTRs) under Biden. Including FY 2021 statistics (which Border Patrol never published), some 800,000 Southwest border migrants were released either on parole or with NTRs.

Those aliens were not placed into removal proceedings with the issuance of a “Notice to Appear” (NTA) before they were released, but instead were released on the condition that they appear at some point in the future at an ICE office to be served with an NTA — only then would they actually be in "immigration enforcement proceedings".

That’s great, except NBC News reported last February that roughly 588,000 of those aliens had yet to receive NTAs, and the New York Post revealed in April that as of then, some wouldn’t be placed into proceedings until October 2032.

Worse, DHS’s Inspector General announced in September that addresses for more than 177,000 migrants released by agents “were either missing, invalid for delivery, or not legitimate residential locations”. ICE can’t place aliens into proceedings if its officers have no idea where those aliens are.

Assuming those aliens are ever placed into removal proceedings, they’ll join a backlog of between 2.5 million (according to DOJ) and three million (according to TRAC) cases pending before fewer than 700 immigration judges. Once in that backlog, those cases can languish for more than a decade — time those aliens can live and work in the United States, all the while building up equities here.

Had they all been detained — as the INA requires — two things would have happened.

First, most of them would never have come. As a federal judge determined in his March 2023 opinion in Florida v. U.S. — a case brought by the state of Florida challenging the Biden administration’s migrant release policies:

There were undoubtedly geopolitical and other factors that contributed to the surge of aliens at the Southwest Border, but Defendants’ position that the crisis at the border is not largely of their own making because of their more lenient detention policies is divorced from reality and belied by the evidence. Indeed, the more persuasive evidence establishes that Defendants effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course — assuming, of course, that the aliens do not simply abscond before even being placed in removal proceedings, as many thousands have done. [Emphasis added.]

Second, however, their “immigration enforcement proceedings” would have been completed a lot more quickly. According to DOJ, the median completion time for a detained case is just 42 days, and back during the early days of the Obama administration (when most border migrants were detained), that completion time was closer to two to four weeks.

Facts. Forgive all the math and seven-digit statistics, but I get asked a lot about Biden’s migrant releases, and figured that it would be better to just lay it all out for everybody to see.

The facts are easier to state: The average illegal migrant has somewhere between a 70 and 90 percent chance of being released into the United States, where that migrant will remain indefinitely (if not forever). Smugglers know those odds, which is why so many migrants are coming now. And that’s not going to change anytime soon, unless Biden stops releasing illegal migrants, or Congress forces him to stop.