Leaked Border Patrol Memo Shows Biden Proclamation Is All Show, No Substance

The administration is plainly concerned about an attack on the homeland, but not enough to enforce the law

By Andrew R. Arthur on June 10, 2024

I recently analyzed President Biden’s June 4 “Proclamation on Securing the Border”, which supposedly caps the number of illegal entrants at 2,500 per day, as well as other documents implementing that policy. The key takeaway was that the rule is so riddled with exceptions as to be largely worthless. Then, on June 9, Fox News’ Bill Melugin tweeted out the administration’s directions to Border Patrol agents on how they are to process migrants under that proclamation, which shows that this policy is all show, no substance. That memo also suggests that the White House is concerned about an attack on the homeland in advance of the 2024 elections – but not concerned enough to enforce the law. 

Melugin Tweet. To set the stage, here’s the tweet:

The Administration’s Border Release Schemes. There are a number of acronyms in that memo, so let me briefly recap the various schemes the Biden administration has implemented to evade congressional directives requiring CBP to detain all illegal migrants, from the moment they are first encountered to the point that they are either granted asylum or removed.

Initially, the administration created a process known as “Notice to Report” (NTR). 

That policy – which was unmoored from any statutory authorization – required Border Patrol agents to simply cut illegal border entrants loose with a vague promise that they would report at some point in the future at a local ICE office to be served with a “Notice to Appear” (NTA), the charging document in removal proceedings (roughly akin to a criminal complaint). 

By July 2021, Axios was reporting that some 50,000 border aliens had been released on NTRs, and that—not surprisingly—few of them bothered to subsequently report. 

In a rather damning September 2023 report, the DHS Office of Inspector General examined nearly a million DHS releases between March 2021 and August 2022, and found that nearly 95,000 migrants had been released on NTRs in concluding that the department did “not have assurance that all” of them could be subsequently located. 

In November 2021, Biden’s DHS formally switched over to a new migrant-release policy, “Parole+ATD”, under which aliens were released from CBP custody on parole under section 212(d)(5)(A) of the Immigration and Nationality Act (INA) to be monitored on so-called “alternatives to detention” (ATD). 

I’ll put aside for this analysis that ATD is both costly and ineffective, and an “alternative” to detention only to the degree cardboard is an “alternative” to Kevlar as body armor. (My colleagues Jessica Vaughan and Jon Feere discussed these and other shortcomings of ATD in the March 9, 2023, edition of our Parsing Immigration Policy podcast.) 

The much bigger issue with Parole+ATD, as federal district court Judge T. Kent Wetherell II determined in his March 2023 order in Florida v. U.S. (“Florida I”, a state challenge Biden’s release policies), was that this policy largely ignored the limitations Congress had placed on migrant parole releases. 

Section 212(d)(5)(A) of the INA permits the DHS secretary to release otherwise inadmissible “applicants for admission” (including illegal entrants) on parole, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. 

None of that happened under Parole+ATD – not the “case by case basis”, and not limiting parole to releases for “urgent humanitarian reasons or significant public benefit”. Instead, as the judge concluded, CBP was only releasing aliens on Parole+ATD as a time-saving measure (such releases took 30 minutes or less, while issuing NTAs took two hours or more). 

Even then, the statute requires the department to ensure that the paroled alien “be returned to the custody from which he was paroled”, after which “his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States” once the purposes of parole were satisfied. Judge Wetherell held that DHS didn’t have a plan to do that, either.

Accordingly, the court shut down Parole+ATD only to have it briefly revived in early May prior to the expiration of Title 42, when it was rebranded as “Parole with Conditions”.

The state of Florida quickly saw through this charade, heading back to court in Florida v. Mayorkas (Florida II) to shut it too down. As luck would have it, Florida II was also assigned to Judge Wetherell, who was about as happy that his earlier order had been disregarded as you would have expected.

His mood likely wasn’t lightened by news that on May 12, 2023 – after the court had issued its order blocking Parole with Conditions – CBP released 2,576 more illegal migrants under the program. The court put DHS on a tight leash with respect to those aliens, requiring the department to report regularly on their status in the removal process, but it doesn’t appear to have moved DHS to any significant action.

In any event, the orders in Florida I and Florida II left the administration with three choices: (1) comply with Congress’s migrant-detention mandates; (2) return illegal crossers back to Mexico to await their removal hearings (which the Trump administration did under its “Remain in Mexico” program); or (3) find some new statutory release loophole to exploit. 

NTA/OR. As you likely guessed, DHS Secretary Alejandro Mayorkas chose option 3, which brings me to the latest Biden release policy, “NTA/OR”. 

Under that policy, illegal migrants are released with Notices to Appear on their own recognizance (“OR”), pursuant to DHS’s general arrest and release authority in section 236(a) of the INA.

The biggest issue with respect to NTA/OR is that it only allows DHS to release aliens arrested on a “warrant” on either bond or OR – whereas illegal entrants are “warrantless” arrests under section 287(a) of the INA.

To get around that issue, agents have been directed to issue warrants of arrest after the fact to illegal entrants they are releasing, prompting the judge to comment: “This sleight of hand – using an ‘arrest’ warrant as de facto ‘release’ warrant – is administrative sophistry at its worst.”

That said, he didn’t shut down NTA/OR as he did Parole+ATD and Parole with Conditions, and in the first seven months of FY 2024, Border Patrol has released more than 668,500 illegal entrants apprehended at the Southwest border on NTA/OR. 

The illegality of this process is underscored by the fact that section 3146(b) of the now twice-defeated Senate border bill would have amended section 236(a) of the INA to permit NTA/OR releases of illegal border migrants.

As a congressional staffer, I wrote a lot of bills, and in none of them did I amend any law to permit actions already authorized in statute. Consequently, section 3146(b) proves that NTA/OR migrant releases are not lawful and never have been. 

“Easy to Remove” and “Hard to Remove”. All of which brings me back to the memo linked in the Melugin tweet, which tells agents how they are supposed to process aliens apprehended after entering illegally under the Biden border proclamation. 

As you can see, processing differs based on whether the migrant is a national of an “easy to remove” country – either in the Eastern or Western Hemisphere – or a “hard or very hard to remove” country in the Eastern Hemisphere.

Nationals of Mexico fall into the former camp, and they are either allowed to take “voluntary return” (“VR”, which allows them to simply go back, usually so they can try to reenter again) or “expedited removal” (“ER”, likely if they try to make any asylum claim). 

If a Mexican national is VR’ed, he or she is not ordered removed – the absence of a formal removal order allows them to try to enter again, this time by prescheduling their illegal entry at a Southwest border port of entry using the CBP One app (a process I refer to as the “CBP one app interview scheme”).

The idea behind the scheme is to allow would-be illegal migrants to start their asylum claims at the ports rather than after being apprehended entering illegally. Through the end of April, tens of thousands of Mexican nationals have scheduled CBP One port appointments, and been released, despite the fact that just 3 percent of Mexican asylum claims were granted in the first quarter of FY 2024.

Nationals of Cuba, Haiti, Nicaragua, and Venezuela who are apprehended entering illegally are to be processed under ER (again, likely if they try to make asylum claims), or are instead allowed to withdraw their applications for admission and return back across the border (where Mexico has agreed to take 30,000 of them per month). 

If those nationalities stick out, it’s because they are given their own parole benefits under a separate (also illegal, but not yet adjudicated as such yet) Biden program known as “CHNV parole”, at a rate of 30,000 per month. 

By allowing them to withdraw their applications for admission, the leaked post-proclamation guidance allows them to avoid the consequences of a removal order, and thus to jump right into the CBP One interview scheme queue or to apply for CHNV parole.

Mexico also accepts back nationals of the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras, which is why they also receive their own special carve-out in the Border Patrol guidance. They are to be processed for ER (if they try to make asylum claims), which is plainly an attempt to force them to come through the ports instead, using the CBP One app interview scheme. 

Nationals of all other Western Hemisphere countries are, as that memo indicates, to be released on NTA/OR – not subject to expedited removal, not allowed to withdraw their applications, and most importantly, not to be detained. 

Nearly half of all aliens encountered by CBP at the Southwest border in the first seven months of FY 2024 are “extra-continental” travelers, coming from outside of North America. Expect that trend to accelerate under this post-proclamation Border Patrol release memo.

“Mandatory Referral Countries”. That’s especially true given that the post-proclamation Border Patrol memo also directs agents to release every migrant who hails from the Eastern Hemisphere on NTA/OR (NB: not that I am suggesting such a thing, but this would be a lucrative time to be a Chinese smuggler), with the exception of nationals of six “mandatory referral” countries. 

The unlucky six are Uzbekistan, Russia, Tajikistan, Georgia, Moldova, Kyrgyzstan, and that mandatory referral suggests that they are priorities for detention. But it suggests a whole lot more, as well, and that part is very disturbing. 

My colleague Todd Bensman and I have been noting for months that this administration has been taking some unusual actions, which suggest it is aware that a possible terrorist attack is being planned or in the offing.

As Bensman reported, a Russian national who entered illegally under the Trump administration and who is from the “terrorism-addled Kabardino-Balkaria region next door to Chechnya” was recently convicted in federal court in California on terrorism-related charges. 

That comes on the heels of the Biden administration’s decision to now allow asylum officers conducting “credible fear” interviews for aliens subject to ER to consider terrorist and criminals bars to asylum using sensitive “national security” information. 

As I explained in discussing that rule change: 

That’s curious given that the administration previously reversed a Trump-era rule that would have done the same thing. It's also curiously timed given that it was issued just over a week after a little-reported incident in which “a Jordanian foreign national who recently crossed the southern border into the U.S.” and an individual “on the U.S. terrorist watch list” tried to sneak onto Marine Corps Base Quantico in the dead of night. 

Notably, Jordanians are on the “NTA/OR” release side of the ledger, not the “mandatory referral” one. 
Russia plainly has its own reasons to strike at the U.S. homeland, given our funding of the Ukrainian defense effort; meanwhile, several former Soviet republics – including the ones on this list – have become hotbeds for terrorist planning and activity.

It particularly bears repeating that an Uzbek national identified as Sayfullo Habibullaevic Saipov was convicted in May 2023 for carrying out an “ISIS-inspired truck attack” in New York City on Halloween 2017, in which eight were killed and 18 others were injured. 

That attack occurred just four days before Abdurasul Hasanovich Juraboev, another native of Uzbekistan, received a 15-year sentence in federal court in Brooklyn “after pleading guilty to conspiring to provide material support to Islamic State (IS) militants”. 

Then, there were reports last August that an ISIS smuggler was moving Uzbek migrants over the Southwest border illegally, 12 of whom were the subjects of an FBI manhunt after they were quickly released by DHS into the United States (it’s unclear whether they’ve ever been found).

Illegal immigration and border security are President Biden’s biggest vulnerabilities heading into the 2024 election, and it’s increasingly clear that he issued the border-security proclamation in an attempt to show that he’s “doing something” about these issues, even though it’s largely smoke and mirrors. 

A terrorist attack carried out by an illegal Southwest migrant would be the biggest “October surprise” in U.S. history and likely trigger a landslide in favor of the Republican presidential candidate (currently former President Donald Trump), as well as in favor of GOP candidates all the way down the ballot to county water commissioner and registrar of wills. 

The Biden administration plainly fears a terror attack is being planned, but not concerned enough to do what Congress has told him to do and detain illegal migrants at the Southwest border. Right now, the administration is playing a risky game, and not all of those risks are electoral.