Holiday News Dump Tries to Hide Massive Surge in Border Migration

The day Congress passed its $1.7 trillion omnibus

By Andrew R. Arthur on December 26, 2022

On December 23 — the Friday before Christmas — CBP released statistics on Border Patrol apprehensions of illegal migrants at the Southwest border in November. Those numbers are more than a week late, and curiously, didn’t come out until the day Congress passed a $1.7 trillion spending bill that provides little relief to the agents trying to stem the border migrant tide.

The Dismal Border Numbers. In November, agents at the Southwest border apprehended more than 206,000 illegal migrants, an increase over October’s apprehension totals (just fewer than 205,000), and the highest total for that month ever (records go back to November 1999).

There are any number of ways to look at last month’s apprehension totals, and none of them are good. Agents at the Southwest border set a new apprehension record in FY 2022, when they caught more than 2.2 million illegal entrants, blowing away the old record (set in FY 2021) by more than 547,000.

November is the second month of the federal government’s new fiscal year, and last month agents apprehended nearly 40,000 more illegal migrants than they did in November 2021 — a 23 percent increase.

In October and November — the first two months of FY 2023 — agents have caught more than 411,000 aliens who entered illegally over the Southwest border. That’s more apprehensions in just two months than agents made in all of FY 2011, FY 2012, FY 2015, FY 2016, FY 2017, FY 2018, or FY 2020.

Only Going to Get Worse. As bad as these apprehension numbers are, they’re only going to get worse once CDC orders, issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, expire. Those orders direct DHS to expel all illegal migrants at the nation’s land borders.

Even though CDC’s Title 42 orders mandate the expulsion of aliens who have crossed the U.S.-Mexico line illegally, just fewer than 65,100 illegal migrants apprehended at the Southwest border were expelled in November under Title 42 — 31.6 percent of the total.

That was the fewest migrants expelled under Title 42 in a month since January 2021, a month in which agents apprehended just over 75,000 illegal entrants and expelled more than 62,000 (an 82.7 percent expulsion rate).

Why has the Title 42 expulsion rate dropped? The Biden administration doesn’t like Title 42, and the president tried to end the program in late May, only to be prevented from doing so by a federal judge in Louisiana on May 20.

The judge in that case (federal district court Judge Robert Summerhays) issued that order in a suit brought by a coalition of states who were concerned that the end of Title 42 would lead to a surge of illegal migrants at the border.

Concerned with good reason. In March, DHS estimated that up to 18,000 aliens per day would cross the Southwest border illegally once Title 42 ended. To put that figure into context, agents apprehended an average of 6,875 aliens per day in November, a record-setting month for apprehensions.

That means that the number of aliens crossing the border illegally could more than double after Title 42 ends, and so Judge Summerhays’ order brought needed relief to already overwhelmed Border Patrol agents.

It likely won’t last, because on November 15, a different district court judge (Emmet Sullivan of the U.S. District Court for the District of Columbia) ordered DHS to stop expelling illegal migrants under Title 42, effective December 21.

Why anyone thought it would be a good idea to terminate Title 42 four days before Christmas is unknown, but in any event those states who brought the suit in Louisiana went to Chief Justice John Roberts and asked him to stay the expiration of Title 42 as ordered by Judge Sullivan, which he did on December 19.

The chief justice’s stay is not permanent, but rather is intended to maintain the status quo while the Supreme Court weighs whether to hear those states’ appeal of Judge Sullivan’s order. If they decide in the coming days not to hear that appeal, the chief’s stay would be lifted, and Title 42 would end shortly thereafter.

The Outsized Role of Title 42. Keep in mind that those Title 42 orders are “public-health”, not “border”, related, but they’re playing an outsized role in Southwest border security because the Biden administration isn’t doing anything else to deter foreign nationals from entering illegally.

That’s by design. As my colleague Mark Krikorian has explained:

Past administrations, including Democratic ones, acknowledged public concern over immigration by tightening their policies to make it harder for foreigners to illegally enter.

This administration, on the other hand, is the first in our nation’s history to reject the very idea of deterring illegal immigration.


They believe that the American people simply have no right to keep anyone out. And if the immigration law requires them to do that — as it obviously does — they’ll do their best to circumvent and ignore the law. [Emphasis in original.]

The Timing. CBP’s border encounter numbers normally appear on or near the 15th of the month, but this is the second time in three months that CBP has issued its numbers unduly late.

While no law mandates that those encounter numbers be published in the middle of the month, Congress may want to investigate the matter because CBP’s releases for FY 2022 and for November look mighty suspicious.

Those totals for FY 2022 appeared late on Friday, October 21, while early voting for the November midterm elections that would determine which party would control Congress was well under way.

November’s numbers appeared on the Friday before Christmas, the day Congress approved its $1.7 trillion “omnibus” spending plan and headed home for the year. As Bill Melugin at Fox News tweeted:

For his part, on December 23, Brandon Judd, president of the Border Patrol union, told Fox News’ Brian Kilmeade:

It’s all political. Everything that this administration does, it has a political calculus. They didn’t want to release the numbers because they knew the omnibus was coming up. ... If they would have released the numbers, you would have seen a larger push to get border security funding in that omnibus. That’s what this administration does. They don’t care about the American people, they care about politics.

Not surprisingly, Title 42 played a role in the omnibus votes. Sen Mike Lee (R-Utah) offered an amendment to the bill on December 22 that would have cut funding to the office of DHS Secretary Alejandro Mayorkas unless the administration reinstated Title 42.

That amendment failed by a vote of 50 to 47, but according to Larry Kudlow at Fox Business, Majority Leader Chuck Schumer (D-N.Y.) kept the vote open to “arm twist” Sens. Krysten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) into switching their votes to defeat the Lee amendment, which required a simple majority to pass.

A New World. The Congress that returns on January 3 will be very different from the one that just adjourned. The GOP won the majority in the House in the November midterm elections, and Speaker-presumptive Kevin McCarthy (R-Calif.) has already called on Mayorkas to resign or face an impeachment inquiry over his handling of immigration and the border.

The border will likely be a different place as well, regardless of whether the chief justice’s stay of the end of Title 42 is lifted. November’s apprehension numbers show that, for as bad as things have been at the Southwest border during the first two years of the Biden administration, they are only getting worse.