NBC News: Administration Leaves Released Migrants in ‘Legal Limbo’

By Andrew R. Arthur on February 22, 2023

In a recent post, I explained that one of the great mysteries of the Biden administration’s catch-and-release policies is how long DHS is waiting before it places the hundreds of thousands of migrants it has caught and released at the Southwest border into removal proceedings. NBC News has reported that the migrants themselves are asking more or less the same question.

The INA Detention Mandate and “Notices to Appear”. The Immigration and Nationality Act (INA) mandates that DHS detain all illegal entrants from the point at which they are caught until they are either granted asylum or removed.

Between FY 2013 and FY 2019, DHS at least attempted to comply with that detention mandate. Of the more than 3.5 million aliens encountered at the Southwest border during that period, just short of two million — 57 percent — remained detained, about 773,000 (22 percent) were detained and released, and just around 749,000 (21 percent) were never detained.

There were three main reasons why aliens would have been detained and released or not detained at all during that time.

First, and notwithstanding that statutory detention mandate, the Board of Immigration Appeals (BIA) issued a decision in 2005 allowing border migrants in detention to seek release from immigration judges on bond.

Taking that legally erroneous BIA decision one step further, in 2015 the Ninth Circuit ordered that certain of those aliens be granted bond hearings. The Supreme Court vacated that circuit court order in March 2018, and later affirmed an opinion by then-Attorney General William Barr vacating the 2005 BIA decision in January 2021.

Second, a poorly reasoned 2015 district court order directed DHS to release adult aliens apprehended entering illegally with children in “family units” (FMUs) within 20 days. That order was later amended by the Ninth Circuit to require that only the kids be released, but DHS as a consequence didn’t invest in detention space for aliens in FMUs, even as their numbers surged in FY 2019. As a result, most of them were simply released shortly after apprehension.

Third, DHS occasionally had to release single adult aliens during migrant surges because it lacked detention space. Release was the exception, however, not the rule throughout most of the Obama and Trump administrations.

Things changed once Biden took office. His administration was faced with a massive surge in illegal migrants almost from Day One, but instead of going to the then-Democratic-controlled Congress and seeking supplemental funding to detain them, release became the norm for aliens who were not expelled under Title 42 but who were processed for removal proceedings under the INA instead.

In FY 2021, CBP encountered more than 1.7 million aliens at the Southwest border and processed 671,000 of them for removal proceedings under the INA. Fewer than 42,000 of those processed under the INA in FY 2021 — 6.2 percent of the total — were encountered under Trump (he expelled more than 192,000 others under Title 42). Nearly all border encounters involving aliens who were processed under the INA in lieu of Title 42 expulsion that fiscal year, therefore, occurred during the Biden administration.

Just 10 percent of all migrants encountered by CBP at the Southwest border and processed under the INA in FY 2021 were detained throughout, while 26 percent were detained and released and a whopping 64 percent were never detained. CBP was turning migrants loose almost as soon as they were caught.

The INA also requires DHS to place inadmissible arriving aliens (including apprehended illegal migrants) into removal proceedings by issuing them notices to appear (NTAs), immigration charging documents that are akin to complaints or indictments in the criminal-law system.

NTAs inform those aliens of the grounds of inadmissibility and the factual bases for those charges, as well as the time, date, and place of their initial removal hearings in immigration court — known colloquially as “initial master calendar” hearings.

“Notices to Report” and “Parole + ATD”. That NTA requirement was another statutory mandate jettisoned by the Biden administration. In March 2021, CBP began issuing apprehended border migrants “notices to report” (NTRs), documents telling those migrants to appear after release at an ICE office, in lieu of NTAs.

My colleague Mark Krikorian described CBP’s release of aliens with NTRs as “essentially immigration enforcement by the honor system”, and he’s right.

Note that there is no legal basis in the INA for releasing migrants on NTRs, but between March and September 2021 (when CBP stopped issuing those notices), more than 94,500 apprehended migrants were released with NTRs anyway.

By then, DHS had begun releasing illegal migrants on “parole”, which is different from parole in the criminal system. Under the parole statute, DHS may allow an otherwise inadmissible alien (again, including an illegal migrant) to enter the United States without being formally admitted.

DHS’s authority to release aliens on parole is tightly circumscribed by Congress. By statute, DHS may parole aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

Despite these procrustean limitations, Border Patrol released more than 25,000 illegal entrants in the last two months of FY 2021 alone.

By October 2021, those parole releases transmogrified into parole plus “alternatives to detention” or in DHS’s parlance, “Parole + ATD”. As NBC News explains, the Parole + ATD program “allowed migrants to be released without charging documents while their whereabouts were tracked with ankle monitors, by checking in on an app or telephonically”.

In FY 2022, Border Patrol agents at the Southwest border released more than 378,000 illegal migrants on Parole + ATD, compared to nearly 311,000 others who were released with NTAs on their own recognizance (which isn’t legal, either).

“Legal Limbo”. Those parole releases raised the questions I asked in my previous post: How long is Biden’s DHS allowing migrants it has released on parole or Parole + ATD to remain in the United States before it issues them the NTAs that place them into removal proceedings? Is it 60 days, a year, five years — or much, much longer?

Which brings me again back to NBC News. It reports:

Between late March 2021 and late January 2023, more than 800,000 migrants were released on Notices to Report or Parole Plus ATD. About 214,000 of them were eventually issued charging documents with court dates, according to data obtained by NBC News, meaning that roughly 588,000 did not know when or where to report for their asylum hearings.

The outlet explains that DHS’s failure to issue NTAs is making it difficult for the migrants to keep ICE apprised of their whereabouts when they move (which in turn complicates their ability to start the asylum process, a condition precedent to seeking work authorization), and hinders ICE’s ability to keep track of them.

NBC News asked DHS for comment, to which the department replied:

If a Notice to Appear (NTA) is unavailable, insufficient, or in need of correction at the time of the immigration court hearing, it is a regular practice to correct the deficiency and resubmit, or issue a new NTA so that cases may resume and migrants can continue with their obligation to appear before an immigration court at a later date.

DHS continues to safely, efficiently, and effectively process individuals encountered at the border.

The first paragraph is a non sequitur, while the last line would be humorous if this all weren’t so sad or didn’t have such dire consequences for national security. Nothing about the NTR/Parole + ATD process NBC News describes is “safe”, “efficient”, or “effective”.

The outlet describes this massive and bungled effort as “legal limbo” for those migrants, and it is difficult to argue with that characterization. It’s also likely a living hell for the ICE officers trying to keep track of nearly 600,000 migrants to whom it has not yet issued NTAs.

The Unasked Questions. For reasons unclear from its report, NBC News goes to great lengths to defend ATD — which it describes as “far less expensive than holding migrants in detention and costs the government less than $1 per day per migrant” — and chiding Congress for not funding that program more lavishly.

I’m unsure where NBC News gets the $1 per day cost figure for ATD. ICE’s “Alternatives to Detention” web page (updated on February 13, 2023) states, under the header “Cost Effectiveness”: “The daily cost per ATD participant is less than $8 per day — a stark contrast from the cost of detention, which is around $150 per day.”

It also parrots the administration’s talking points to the effect that “when migrants are enrolled in ATD and given court dates, they have a 99.4% rate of showing up to their first court hearing and a 95.7% rate of showing up to their final hearing”.

That leaves two related questions unanswered. The first is the one I asked in my earlier post: How long are apprehended and released migrants allowed to remain in the United States before they are issued NTAs and placed into removal proceedings?

The second is how far out are the initial master calendar hearings in those cases being scheduled once those aliens are served with NTAs?

Both questions are relevant to the cost effectiveness of ATD vs. detention.

If, on average, it will take DHS one year to serve those 588,000 aliens with an NTA and one additional year before those aliens’ initial master calendar hearings are held, that’s 730 days of ATD (costing anywhere between $730 to $5,840 per alien) before the removal hearing process even begins. If it will take on average five years to serve those aliens with NTAs, and the Initial Master Calendar hearing won’t occur for another five years, you can multiply those costs by ten.

Thus, regardless of whether ATD costs $1 or $8 per day, the longer those aliens remain in the United States before they are placed into proceedings — and thus the longer they remain on ATD — the more cost-effective detention becomes as an option.

This is particularly true given that removal hearings can be quickly completed in detention. The median time for completion of a detained case in immigration court is 43 days, while the average wait time between a case being filed in immigration court and an asylum hearing being held nationally is 4.3 years.

Then of course there are other costs to care for non-detained migrants. That $150 per day in detention pays for housing, food, and medical care. New York City Mayor Eric Adams (D) has recently explained that the border migrants in his city will impose municipal costs on NYC of $65,000 per migrant in the coming fiscal year. By that point, $150 for a daily detention bed is a bargain.

The question of when initial master calendar hearings for border migrants are being scheduled is directly relevant to appearance rates for aliens released on ATD. While NBC News reports that 214,000 migrants apprehended at the Southwest border who had been released with NTRs or on Parole + ATD were served with NTAs, the outlet never reveals how many of them have already had immigration court dates.

If 99 percent of them aren’t scheduled to appear for initial master calendar hearings until March 2023 or later, that 99.4 percent appearance rate verges on the meaningless. Both logically and from experience, the longer those aliens remain at large in the United States — either with ATD or without — the less likely they will be to ultimately appear.

“Safe, Orderly, and Legal”. The administration has expressly stated that its objective isn’t “to reduce the total number of illegal immigrants coming across” the Southwest border, but instead providing those migrants with “safe, orderly, and legal pathways for individuals to be able to access our legal system”. As NBC News has revealed, Biden’s failing on both counts.