As I have reported previously, Texas Governor Greg Abbott (R) has been busing willing illegal migrants who were released into his state by DHS to Washington, D.C., and New York City. DHS Secretary Alejandro Mayorkas is now complaining that Abbott isn’t coordinating those trips with his department and is throwing his department’s processing of those migrants “out of whack”. Something’s out of whack, but it’s at DHS headquarters and the White House, not in the governor’s office.
Border Apprehensions and Releases. Between February 2021 — the first full month of the Biden administration — through the end of July, Border Patrol agents at the Southwest border apprehended more than 3.19 million illegal entrants.
Of those 3.19 million-plus apprehended aliens, fewer than 1.697 million have been expelled under CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic. That leaves more than 1.495 million aliens who have been processed for removal under the Immigration and Nationality Act (INA).
Section 235(b) of the INA mandates that all illegal entrants be detained — from the point that they are apprehended to the time that they are either removed or granted status in the United States. DHS does have very limited authority to release those aliens on what is termed “parole”, but parole decisions can only be made “on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
The Biden administration has complained — somewhat fairly — that prior administrations have also released illegal entrants notwithstanding that detention mandate. That said, Biden’s predecessors at least tried to detain those aliens in accordance with law.
Of the fewer than 3.518 million aliens subject to detention who were encountered by CBP at the Southwest border under the Obama and Trump administrations between FY 2013 and FY 2019, more than 1.195 million (57 percent) were detained throughout their proceedings, and an additional 22 percent were detained for some period and released. Just 749,013 (21 percent) were never detained.
Those detention and release numbers, however, come from the Biden administration and include alien adults travelling with children in “family units” (FMUs), which artificially — and likely deliberately — inflate the number of aliens who were not detained or who were detained and released under Obama and Trump.
That’s because under an “out of whack” 2015 federal court decision, DHS can only detain the children in FMUs for 20 days. To avoid “family separation”, DHS normally releases the parents, too. That decision has also deterred the department from investing in costly family detention centers — meaning that aliens in FMUs are both likely to have never been detained, and to have been released if they were.
By contrast, however, only 10 percent of the more than 525,000 aliens encountered by CBP in FY 2021 (most under the Biden administration) were detained, while 26 percent were detained and released and a whopping 64 percent were never detained. While detention was the rule under the 44th and 45th presidents, non-detention is the rule under the current one.
Consequently, from the start of the Biden administration through the end of June, DHS has released 1.129 million-plus aliens encountered at the Southwest border into the United States, where they will remain indefinitely, if not forever.
Texas and Arizona Start Busing Migrants. Most of those aliens are being released into two border states — Texas and Arizona — where the bulk of CBP Southwest border encounters have occurred.
Those releases had primarily occurred at the border itself, but in March, DHS started releasing migrants it had apprehended into small Texas towns, including Uvalde (about 60 miles from the Rio Grande, population 15,312) and Carrizo Springs (50 miles from the border, population 4,796).
That overwhelmed those mostly rural communities, and a lack of transit in each offered the migrants few opportunities to move on. In response, on April 6 Abbott announced he would offer released migrants bus transportation to the home of the federal government, Washington, D.C.
Thereafter, Arizona Governor Doug Ducey also started sending his own migrant buses to D.C., and by late July, around 3,500 migrants had been transported to the National Capital area by the two states.
That’s when D.C. Mayor Muriel Bowser (D) asked the Department of Defense (DoD) for not only 150 National Guard troops, but also a “suitable federal location” to serve as a housing and processing center.
Around the time that Bowser asked for federal aid in dealing with this comparatively small number of migrants, New York City Mayor Eric Adams (D) asked for federal assistance to deal with migrants as well. The New York Times reported on July 25:
Early last week, Mayor Eric Adams called for federal assistance to help with what he said was a flood of 2,800 asylum seekers who were making it difficult for New York City to fulfill its legal obligation to provide housing to those in need, known as the right to shelter.
Mr. Adams said the influx was partly caused by migrant families “arriving on buses sent by the Texas and Arizona governments.”
Despite Adams’ claims, the migrants who had come to his city arrived either on their own or through federal transit — not on Texas’ or Arizona’s buses. In response, however, Abbott placed New York City on the itinerary for migrant transport, and CNN reported on August 27 that around 9,000 border migrants had been sent to Adams’ and Bowser’s cities on those states’ dime.
A war of words has ensued, primarily between Abbott and Adams, about the humanity of Biden’s border policies on the one hand and Abbott’s busing of migrants on the other.
Mayorkas Wanders into the Fray. It was into this fray that Mayorkas next decided to wander, complaining to CNN on August 24 that Abbott’s bus scheme “is throwing the federal system for processing migrants ‘out of whack’” and criticizing the governor “for not coordinating with federal authorities”.
The outlet continues:
Mayorkas said it's "problematic" when an official like Abbott works "unilaterally."
"That lack of coordination wreaks problems in our very efficient processing," Mayorkas told CNN in Eagle Pass while he was at the U.S.-Mexico border on Thursday, adding that it's making the work of DHS "more difficult."
Mayorkas criticized Abbott for not working with destination cities.
"These cities have certain capacities," he said. "They have infrastructure to address the needs of migrants, and we need to calibrate the movement of people, according to their capacity and their efficiencies. And that is not being done."
There’s a lot to unpack there, but if the melee currently occurring at the Southwest border is the product of “efficient processing”, I would hate to see what happens when things go awry.
As for Mayorkas’ complaints about the governor “not working with destination cities”: (1) That is between Abbott and the mayors, and is not a federal issue; (2) DC and New York City have greater “infrastructure to address the needs of migrants” than Uvalde and Carrizo Springs; and (3) a lack of coordination between the federal government and the border states is at issue in any number of lawsuits, including ones that the Biden administration is currently on the losing side of.
With respect to the last point, consider Louisiana v. CDC, a case brought by the states of Louisiana, Arizona, and Missouri to force the Biden administration to continue those Title 42 expulsion orders, which the federal government had tried to end on May 23.
In enjoining the termination of Title 42, federal district court Judge Robert R. Summerhays specifically held that the administration had erred in failing to seek the states’ input on the impact that the end of the program would have on them, in accordance with the Administrative Procedure Act (APA).
Or consider Texas v. U.S., a suit brought by the states of Texas and Louisiana to block a September 30 “guidance” memo Mayorkas issued that had tied the hands of DHS officers in enforcing the immigration laws.
The Fifth Circuit, denying a stay of U.S. district court Judge Drew Tipton’s vacating of that guidance in July, found (again) that Mayorkas had erred in not seeking the input of the states and of the public as a whole on the effects of that memo before it was issued.
Mayorkas is plainly engaging in what psychologists call “projection” in criticizing Abbott because it is the secretary and the administration who are acting “unilaterally” and failing to coordinate their actions and policies with the states — who under our federal system are “dual sovereigns” with the U.S. government, but wholly dependent on Washington for immigration enforcement they aren’t receiving.
Mayorkas’ criticisms of Abbott suggest he could be either an agent provocateur prodding his political opponents into doing something rash to justify the administration’s larger agenda, or a pro-enforcement mole triggering a backlash to Biden’s non-enforcement policies. He’s likely just tone deaf, because DHS’s “system for processing migrants” is already “out of whack” without any help from the states.