One notable takeaway from the otherwise uninspired “Proclamation on Securing the Border” President Biden issued on June 4 is the claim therein that: “Total removals and returns in the 12 months following May 12, 2023, exceeded removals and returns in every full Fiscal Year since 2010.” That’s kind of true, but it’s also misleading; removals and returns are high because the president’s policies have driven historically large numbers of migrants to come here illegally. As my colleague Jon Feere recently explained, Reuters has taken that claim and run with it, arguing “Biden is now deporting more people than Trump” — a factually untrue statement, as he made clear. Here’s what the White House and its media allies aren’t telling you.
Some Simple Border Math. Before delving into the legal issues, here’s some simple immigration math: In the five full fiscal years, FY 2016 to FY 2020, before Joe Biden became president, Border Patrol agents at the Southwest border apprehended on average just over 472,300 illegal migrants annually, an average of about 39,360 per month.
In the 39 full months, February 2021 to May 2024, that Biden has been in office and CBP has published stats, agents have apprehended just over 6.9 million illegal migrants at the U.S.-Mexico line, an average of more than 177,000 apprehensions per month.
Those numbers, while important, only tell part of the story.
Title 42, and Its Downside. That’s because on March 20, 2020, in response to the Covid-19 pandemic, CDC issued the first of its orders under Title 42 of the U.S. Code directing the expulsion of aliens who entered the United States illegally or who appeared at the border ports without proper documents.
Here’s how those “Title 42” orders worked in practice at the border: Illegal migrants deemed subject to expulsion under Title 42 were taken to the closest port of entry and simply sent back across the border.
Trump enforced those orders vigorously. Of the nearly 240,000 illegal migrants apprehended at the Southwest border between late March and the end of September 2020, 82.1 percent — more than 197,000 aliens — were expelled under Title 42. The remaining 45,000-plus were processed for removal under the Immigration and Nationality Act (INA).
Similarly, of the fewer than 285,000 illegal migrants who were apprehended in the first four months of FY 2021 (ending on January 31), nearly 87 percent (247,000-plus) were expelled under Title 42.
The biggest issue with Title 42 — at least as implemented — was that no real consequences, aside from expulsion, were imposed on illegal migrants who were expelled. They weren’t prosecuted for illegal reentry (which is a felony under section 275 of the INA) when they returned, though I believe they should have been, and they weren’t ordered “removed” under the INA.
Expulsions, Removals, and “Expedited Removals”. Which brings me to the concept of “removal”, the legal term for deportations since 1996. In this analysis I’ll use the terms “removal” and “deportation” interchangeably simply to avoid repetition (i.e., “an alien ordered removed is subject to removal and can be removed”).
Significant penalties attach to deportation pursuant a removal order, from the threat of prosecution for illegal reentry after removal under section 276 of the INA (which carries a potential 20-year sentence in the case of aggravated felons) to years-long bars to lawful admission to the United States (subject to waivers and exceptions) under section 212(a)(9) of the INA.
DHS can’t formally deport aliens until they’ve been ordered removed, however, which in most cases requires the issuance of a removal order by an immigration judge at DOJ (a position I held for more than eight years), following the completion of often-lengthy removal proceedings under section 240 of the INA.
Border removals, however, can — and I stress can — be an exception to that “immigration judge removal order” rule. That’s because in section 235(b) of the INA, Congress gave Border Patrol agents the power to subject illegal migrants to what’s known as “expedited removal” — a procedure under which those agents, and not immigration judges, are allowed to issue removal orders themselves.
Those expedited removal orders are every bit as legally valid and have the same impacts as immigration-court orders, and unlike orders issued by immigration judges, they can’t be appealed.
But expedited removal comes with a rather significant catch, as section 235(b) of the INA requires agents to refer illegal migrants subject to expedited removal who express a fear of harm (or just straight-out ask for asylum) to asylum officers (AOs) at USCIS for what’s known as a “credible fear” interview.
The “credible fear” standard is low, defined by statute as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.
If the alien receives a “positive credible fear determination” from an AO, the alien is usually taken out of expedited removal and placed into section 240 removal proceedings. Aliens who receive negative credible fear determinations, however, never leave expedited removal and are subject to deportation.
That expedited removal process was added to the INA in 1996, and up until FY 2010 only around 4 to 5 percent of aliens who were subject to expedited removal ever claimed a fear of harm if returned.
The reason why so few illegal entrants made fear claims up to that point was because there was no benefit in doing so frivolously.
Section 235 of the INA requires DHS to detain every alien subject to expedited removal as well as every alien placed into section 240 removal proceedings after receiving a positive credible determination, in the latter case until they are either granted asylum or removed.
In January 2010, however, the Obama administration started ignoring those detention mandates to instead allow certain aliens who had received positive determinations to be released from custody on parole, pending their section 240 removal hearings.
Smugglers quickly exploited that loophole, and by FY 2017, 44 percent of illegal migrants subject to expedited removal made a fear claim. By that point, incoming President Trump lacked detention space to hold all those aliens, and so he had to leave that Obama-era policy in place.
As illegal entries by adult migrants travelling in “family units” (FMUs) with minor children surged in early FY 2019 (55.6 percent of all apprehensions that year involved FMUs), the Trump administration realized that it needed some solution, because as long as families kept getting released, they’d keep coming.
It responded by implementing the “Migrant Protection Protocols” (MPP), better known as “Remain in Mexico”. Under MPP, aliens who made fear claims were sent back across the border to await their section 240 removal hearings at “port courts” specially established to hear their claims.
That prevented illegal entrants with weak or bogus claims from living and working in the United States until their asylum claims were considered and, largely as a result of MPP, the number of aliens entering illegally plummeted, from nearly 133,000 in May 2019 to just over 30,000 in February 2020 — the month before Title 42 took effect.
Recidivism. As noted above, the biggest downside to expulsions under Title 42 is that — unlike deportations pursuant to removal orders (section 240 or expedited) — no real penalties prevent expelled aliens from turning around and entering illegally again, meaning those expulsions had no “deterrent effect”.
Which brings me to the concept of “recidivism”, which DHS defines as the “percentage of individuals apprehended more than one time by the Border Patrol within a fiscal year”.
For the first two years of the Biden administration, DHS attempted to explain away the massive spike in the number of aliens apprehended at the Southwest border by asserting that CBP’s published stats were artificially inflated as they didn’t reflect the actual number of “unique individuals” being caught. That’s because more than a quarter of them (27 percent in FY 2021) were, in fact, “recidivists”.
Respectfully, even if recidivism accounted for 27 percent of the nearly 1.66 million illegal migrants whom agents apprehended at the Southwest border in FY 2021, it didn’t explain the other 73 percent (more than 1.2 million illegal migrants) who were “unique individuals”.
Biden’s CBP stopped publishing recidivism numbers in FY 2021, likely because that figured dropped as it failed to expel as many illegal migrants under Title 42 as Trump had (and as those CDC orders required). Of the more than 224,000 apprehensions at the Southwest border in May 2022, for example, fewer than 104,000 (46 percent) resulted in Title 42 expulsions.
That left nearly 121,000 aliens that month who were processed for removal under the INA, but just over 15,000 of them (less than 11 percent) were subject to expedited removal.
Instead, more than 73,500 (almost 61 percent) of those illegal migrants apprehended at the Southwest border in May 2022 were simply released immediately after they were encountered, either with a notice to appear placing them into section 240 removal (22,523) or on parole (51,481). You can’t be a recidivist if you’re never forced to leave.
Biden’s Border Problem. All told, by my conservative estimates, DHS has released at least 88.5 percent of all of the aliens CBP encountered at the borders and the ports under the Biden administration.
Those releases are the overriding factor driving the ongoing border surge, as a federal judge determined in March 2023. That surge became an increasing political headache for the president as more voters started to focus on illegal migration and the impacts it was having on towns and cities across the country.
To drive down the number of migrants apprehended entering illegally without actually keeping most of them out of the United States, in January 2023 the White House announced two new programs that would allow aliens without proper documents and no right to be here to enter the United States anyway, “legally”.
The first of those programs, “CHNV parole”, allows up to 30,000 nationals of Cuba, Haiti, Nicaragua, and Venezuela to enter the country per month for two-year periods of parole. They don’t actually need to be present in those countries, let alone on the verge of entering illegally, to be eligible to apply, and in fact as my colleague Todd Bensman has revealed, they are coming from as far away as Norway and Australia.
In exchange for the White House’s implementation of that program, the Mexican government agreed to take back an equal number — 30,000 per month — of illegal migrants from those CHNV countries who have been apprehended entering illegally.
The second program permits would-be illegal migrants — again with no right to be admitted — to schedule interviews at the Southwest border ports of entry using the CBP One mobile app, an “innovation” I’ve termed the “CBP One app interview scheme”.
That scheme is open to aliens from any country, not just the CHNV ones. The sole requirement is that to use the app, the alien must be in central or northern Mexico (an easily defeated constraint). Since last June, CBP has made 1,450 CBP One interview slots available per day (up from 1,250).
Little is known about what goes on during those interviews, but it must not be too strenuous for the applicants given that 95.8 percent of all those aliens who have scheduled appointments using the app are thereafter allowed to enter the United States on parole.
“Biden Is Now Deporting More People than Trump”. Which brings me back to the Reuters article, “Biden is now deporting more people than Trump”.
As Feere explains, the only way the outlet is able to make that claim is by conflating “returns” and “removals” and lumping them both together as “deportations”. I’ve already explained that “removals” and “deportations” are the same thing, so what are “returns”?
Returns are any process under which DHS is able to send illegal migrants back across the border without ordering them removed, i.e., without “deporting” them.
Thus, when those 30,000 illegal migrants from the CHNV countries are sent back to Mexico each month, they are either subject to expedited removal or simply allowed to withdraw their applications for admission — more likely the latter (a form of “return”) than the former.
Those facts come from a leaked memo detailing the administration’s implementation of its June 4 “border proclamation”, which also reveals illegal Mexican migrants are allowed to accept “voluntary return” — yet another kind of return — in lieu of detention or expedited removal.
While that memo directs agents to subject nationals of the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras to expedited removal (other nationals aside from those from six former Soviet republics are simply released into section 240 removal proceedings), it wouldn’t surprise me if many Northern Triangle migrants aren’t also allowed to withdraw their applications for admission and go back to Mexico (which usually agreed to take them back under Title 42).
Why would the Biden administration not want to subject all illegal migrants to expedited removal, or at least detain them and place them into immigration-judge proceedings? In part, probably because if it did so, those aliens would be subject to the penalties I described above if they were ordered removed.
“Returning” them in lieu of removal sidesteps those penalties and allows aliens subject to return to take advantage of CHNV parole or the CBP One app interview scheme.
Of course, some of those returned migrants are simply going to come right back in illegally, which is why it would be enlightening if CBP started publishing updated recidivism stats again. Call me suspicious, but there must be some reason a statistic the administration used to trumpet is now hidden.
CBP knows in real time whether an alien is a recidivist or not because the agency captures biometrics from every alien apprehended between the ports and every inadmissible alien stopped at the ports and can tell whether they’ve been here before.
If I were still working for Congress (another job I held for eight years), I’d ask DHS for the most updated recidivism percentages. Whether any current staffer deems it important to ask is up to them.
What’s Really Happening at the Border. Reuters never actually quantifies how many of what it describes as “deportations” there were under Trump and Biden, respectively; instead, it uses graphs to compare the two. Thus, there is no way to forensically verify their numbers.
In the first eight months of FY 2024, however, Border Patrol reports it placed more than 31,000 aliens encountered at the border on “Northern Triangle Repatriation Flights”, while fewer than 187,000 other aliens were sent by agents to the Southwest border ports of entry. Some of those aliens may have been subject to expedited removal, some may be simple returns, but there’s no way to know which is which.
What I do know from figures produced by the DHS Office of Homeland Security Statistics (OHSS), however, is that in the first five months of FY 2024 (October 2023 through the end of February), DHS removed 135,500 aliens — an average of 27,100 per month.
Compare that to FY 2019, under Trump, when DHS removed more than 347,000 aliens, an average of 28,940 per month, and FY 2018, when DHS removed 327,260 aliens (an average of 27,272 per month) — all in years in which the number of illegal entrants subject to the much simpler expedited removal process were significantly lower.
With respect to returns, I know from OHSS that in FY 2023, DHS executed nearly 289,000 of them (an average of 24,069 per month), and that in the first five months of FY 2024, there were an additional 171,560 DHS returns (14,297 per month).
Contrast that with FY 2019, when DHS allowed just fewer than 81,400 aliens to return (an average of 6,783 per month) or FY 2018 (87,170 returns, an average of 7,264 per month). As with the Biden returns, those aliens are not subject to the significant penalties that accompany removal — but the Trump administration cut that break to many fewer aliens than the Biden administration has.
By the way, none of these Biden or Trump figures include Title 42 expulsions — OHSS breaks those down into a different category, appropriately.
The key failing in both the June 4 Biden proclamation and the Reuters article is that each highlights increases in the numerator (the total number of removals and returns) while failing to explain fact that the denominator (the total number of border aliens potentially subject to removals and returns) has grown at least as quickly if not more so.
“Biden Is Now Deporting More People than Trump” is a catchy headline, but it’s also erroneous and fails to explain that even if it were true, Biden’s DHS has many times more border migrants to “deport” than Trump’s did.
Finally — and importantly — even though Biden’s DHS has dealt with more illegal migrants than Trump’s did, the number of migrants subject to expedited removal initially dropped significantly under Biden.
According to OHSS, DHS executed 143,550 expedited removals in FY 2018 (11,963 per month) and an additional 163,520 in FY 2019 (13,627 per month). Here are the figures for the last two full fiscal years under Biden: FY 2022, 54,140 (4,512 per month on average); FY 2023, 91,250 (7,604 on average per month).
The good news is that in FY 2024 through the end of February, DHS executed 81,300 expedited removal orders, for a monthly average of 16,260. Of course, Border Patrol agents apprehended nearly 43,000 more illegal migrants in that five-month period — all of whom should be subject to expedited removal — than they had in all of FY 2019, so I’d hope the number of expedited removals would increase.
There’s a big difference between “removing” aliens and “returning” them. Removals — court-ordered or agent-issued — impose consequences meant to deter illegal migrants from illegally reentering, while returns leave them free to come and go as they please. Even if the media’s unclear on these distinctions, the administration knows the difference — and should start being honest about what’s happening at the border.