It’s No Secret — Biden’s Hiding Bad Border Numbers

What we know about migrant releases — and a whole lot that we don’t

By Andrew R. Arthur on September 1, 2023

On August 27, Just The News published an article captioned “DHS hides monthly number of illegal migrants released into U.S after interacting with border agents”, which details the Biden administration’s failure to disclose its border release numbers. Read it, and you’ll see me quoted extensively therein. That article prompted similar pieces in the New York Sun and in Blaze News, in which I’m also cited. I appreciate the press, but honestly I have been making this point for some time. It’s no secret that Biden’s been hiding his bad border numbers, likely because the White House knows that the president’s handling of the border is a political liability. Here’s what’s we know about Biden’s border releases — and what we don’t.

“Decoding” the Numbers. In June, I wrote a piece captioned “Decoding CBP’s Southwest Border Statistics for May”. I explained that the number of illegal migrants who had been encountered by CBP at the Southwest border and released into the country under the president’s overarching non-detention policies then totaled “at an absolute minimum ... 2,184,124, a population larger than Dallas and San Francisco combined, or about 70,000 more people than live in New Mexico, the 36th largest U.S. state.”

How did I determine the exact minimum number of illegal Southwest border migrants who had been released since the president took office on January 20, 2021? Simple math, aided in no small degree by an August 2021 order issued by U.S. district court Judge Matthew Kacsmaryk in Texas v. Biden.

Texas v. Biden. Texas is an ongoing suit filed by the states of Texas and Missouri to force the Biden administration to reinstate the Trump-era “Remain in Mexico” policy.

Judge Kacsmaryk directed DHS to resume that policy, and to ensure compliance with his order directed DHS to provide the court — no later than the 15th of each month — with “the total monthly number of encounters at the southwest border”, as well as “the total monthly number of ‘applicants for admission’ under [section 235 of the Immigration and Nationality Act (INA)] released into the United States, paroled or otherwise”. (Emphasis in original.)

Under section 235 of the INA, all aliens present in the United States who have not been admitted — both the ones who crossed the border illegally between the ports of entry and those who show up at those ports — are considered “applicants for admission”, regardless of whether they ever intended to formally apply for admission.

In that vein, “encounters” is also a term of art, and defined in a similar manner. It is the total of aliens deemed inadmissible at the ports by CBP’s Office of Field Operations (OFO) plus aliens apprehended after entering illegally by Border Patrol agents (who are also part of CBP).

Note that the defendants in that case included not just the president, DHS Secretary Alejandro Mayorkas, and the acting commissioner of CBP, but the acting ICE director, as well. Accordingly, the court’s order required ICE to provide its border release statistics, too.

Given that CBP has jurisdiction over the border and ICE has responsibility for enforcing the INA in the interior, why would ICE have any border release statistics to report?

Because while CBP holds border migrants while they are being processed by that agency, ICE detains removable aliens pending removal proceedings, including those originally encountered by CBP at the border and ports. Those aliens are transferred to ICE by CBP for detention after processing, assuming they are not released.

Florida v. U.S.. That said, DHS is required under the INA to detain all inadmissible applicants for admission, both the ones deemed inadmissible by OFO at the ports and those apprehended by Border Patrol entering the United States illegally between them.

The DHS secretary does, however, have extremely limited authority under section 212(d)(5)(A) of the INA to release inadmissible applicants for admission on "parole", but “only a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

In September 2021, the state of Florida filed a complaint in district court in Florida v. U.S., challenging the Biden administration’s release of inadmissible applicants for admission at the Southwest border.

During discovery in Florida, the state found that Biden’s DHS had implemented a policy called “Parole+ATD”, under which CBP had released hundreds of thousands of illegal entrants en masse into the country, and not for any “urgent humanitarian reasons” or “significant public benefit”, but rather to get them out of the agency’s custody as quickly as possible.

In his March 8 order in Florida, Judge T. Kent Wetherell II told DHS that it had no right to release border migrants under Parole+ATD, and in fact had no power to release them at all, except in strict compliance with Congress’ limitations in the parole statute.

DHS’s Disclosures in Texas. In any event, DHS — both CBP and ICE — dutifully complied with Judge Kacsmaryk’s order in Texas, filing monthly “Status Reports” on the previous month’s border releases each month between September 15, 2021, and July 15, 2022.

That order was vacated, however, by the Supreme Court in an opinion handed down June 30, 2022. The justices issued their final judgment in the matter on August 1, 2022, and at that point, Judge Kacsmaryk’s disclosure order evaporated. That’s why there were no more Texas disclosures after July 15, 2022.

Those disclosures, however, revealed that not only did CBP — again both Border Patrol and OFO — and ICE keep track of the number of inadmissible Southwest border applicants for admission whom they released monthly, but also that they could produce those statistics in a timely manner, within 15 days of the end of the preceding month.

Obfuscation and Zeroes. The problem is that, in the case of ICE and OFO, they have refused to publish their Southwest border release statistics since Judge Kacsmaryk’s order was vacated effective August 1, 2022. Follow me and I will explain.

CBP’s website includes a page captioned “Custody and Transfer Statistics”, which contains numbers and outcomes for all the aliens that it has encountered at the Southwest border each month.

Go to the fourth dropdown box on that page (“U.S. Border Patrol — Dispositions and Transfers”) and you will come to two datasets: “USBP Monthly Southwest Border Encounters by Processing Disposition” and “USBP Monthly Southwest Border Apprehensions by Transfer Destination”.

The former tells you the results of Border Patrol’s processing of the aliens that it encountered at the Southwest border, and the latter where it sent those aliens to.

Review the entries in the first dropdown box for July, for example, and you will see that agents apprehended 132,652 illegal entrants last month, and that it released 69,336 of them (52.2 percent) on their own recognizance with “Notices to Appear” (“NTAs”, the charging documents in removal proceedings), that it paroled 10 others, and that it subjected 18,059 of them to expedited removal (13.6 percent of the total).

Thus, we know that Border Patrol is failing to comply with the INA by detaining all those migrants, but also that it is following Judge Wetherell’s order in Florida.

That said, those statistics also undermine Mayorkas’ May 11 promise that, “The vast majority of individuals will indeed be placed in expedited removal, and if they do not qualify, will be removed in a matter of days, if not weeks, from the United States.”

Compare those Border Patrol disclosures to the ones from OFO, found in the first dropdown box and captioned “Office of Field Operations — Dispositions and Transfers”.

The first dataset therein (“OFO Monthly Southwest Border Credible Fear Inadmissibles by Disposition”) reveals, for example, that in July CBP officers in OFO encountered 45,673 inadmissible aliens, and put 44,859 of them (98.2 percent) into removal proceedings by issuing them NTAs. So far, so good.

Look at the next two lines, however, the first captioned “NOTICE TO APPEAR (NTA)-PERSON RELEASED” and the second “NOTICE TO APPEAR (NTA)-PERSON DETAINED”. For not only July, but for every month in FY 2023, every databox reads “0”. That’s a legal and a factual impossibility because those aliens were either detained or released — there is no third option.

That’s especially true given the fact that the fourth databox therein (“OFO Monthly Southwest Border Credible Fear by Transfer Destination”) shows that only 1,096 aliens encountered by OFO at the Southwest border ports were transferred over to ICE for detention. They had to go somewhere.

Again, from OFO’s disclosures in Texas, we know that OFO captures the number of aliens it releases and that it can provide those statistics in a timely fashion. It simply chooses not to do so, and instead hides those release numbers from prying eyes.

All of which brings me to ICE, which doesn’t publish its statistics in easy dropdown boxes. For that one, you must go to ICE’s “Detention Management” webpage. Scroll to the bottom, and you will find “FY 2023 ICE Statistics”, which links to Excel spreadsheets.

Turn to the third Excel spreadsheet, captioned “ICE Detention Data FY 2023”. The second dataset in the second box therein is captioned “ICE Initial Book-Ins by Arresting Agency and Month FY 2023”, which reveals that in the first 10 months of FY 2023, nearly 156,000 aliens encountered by CBP were transferred to ICE for detention.

Of course, we have no idea where CBP encountered those aliens — Southwest, Northern, or Coastal border, or interior airport. It’s likely safe to say that the lion’s share was encountered at the U.S.-Mexico line, though.

If you go down to the fourth dataset on that spreadsheet, “ICE Final Release by Release Reason, Month and Criminality”, you will see that in FY 2023 through the end of July, ICE released nearly 130,000 aliens whom it had detained.

The problem is, it never tells you whether those released aliens were first arrested by ICE in the interior or if they were first encountered by CBP at the Southwest border and then transferred to ICE for detention. As noted above, ICE could provide that data — it just refuses to do so.

What Happened to Nearly 317,000 Aliens Encountered at the Southwest Border Ports? I won’t belabor these already laborious points any further, but there are similar OFO and ICE release statistics for FY 2022 as well, and they are more of the same.

Since the last disclosure in Texas (again, for June 2022), OFO has encountered nearly 317,000 inadmissible alien applicants for admission that CBP officers placed into proceedings by issuing them NTAs. Where did they go?

According to ICE, it detained more than 201,313 aliens who were transferred to its custody by CBP in that time, so those aliens encountered by OFO at the Southwest border ports plainly didn’t all go to ICE, and I doubt whether many if any did.

Speaking of ICE, it released 171,485 aliens who had been in its custody between the beginning of July 2022 and the end of July 2023. How many of them were illegal migrants first encountered by OFO and Border Patrol at the Southwest border and transferred to ICE custody? No idea because ICE could tell me — but it won’t.

Section 103(a)(5) of the INA provides that the secretary of Homeland Security “shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens”.

Every inadmissible applicant for admission encountered by CBP at the Southwest border — both OFO at the ports and Border Patrol between them — who is allowed to enter the United States is an instance in which Secretary Mayorkas failed to comply with his statutory duty.

Court-ordered disclosures in Texas and Border Patrol’s statistics reveal that 2,289,990 illegal migrants encountered by CBP at the Southwest border have been released into the United States, nearly all in violation of law. Add in the inadmissible aliens encountered by OFO at the Southwest border ports since July 2022 who were issued NTAs, and that number exceeds 2.6 million, not counting ICE releases, which could push the total above 2.7 million.

How many illegal migrants has the Biden administration waved into the United States in contravention of congressional detention mandates? I don’t know, and his DHS won’t tell me. What could they be trying to hide?