Rep. Biggs Releases Shocking Report on Sad State of Border Enforcement

But DHS response leaves a lot of key unanswered questions

By Andrew R. Arthur on February 4, 2022

On May 19, 2021, Rep. Andy Biggs (R-Ariz.) sent a request to DHS seeking information about CBP releases at the Southwest border. More than eight months later, on January 31, he got his response, which he tweeted out two days later. DHS’s answers are shocking, reflecting the sad state of current enforcement at the Southwest border. Still, however, the response leaves a lot of key unanswered questions.

DHS Talks Down to Border State Congressman on Committee of Jurisdiction. Here is Biggs’ tweet of the response letter:

I am sure that it was not DHS’s intent to be condescending, but as you can see, the department fluffs up that letter with a lot of Immigration 101.

That would be fine in a missive to a junior state legislator from, say, Nebraska, but Biggs is a three-term congressional representative who has spent more than five years on the House Judiciary Committee (which has jurisdiction over immigration) and sits on the Subcommittee on Immigration and Citizenship.

Given that, he likely knows that aliens “who are unlawfully present in the United States may be processed for removal from the United States in accordance with U.S. immigration law”, how immigration courts work, and what appellate rights aliens have.

More saliently, however, Biggs represents Arizona’s Fifth Congressional District (in the southeastern part of the Phoenix metro) — not exactly the border, per se, but close enough. Further, and prior to coming to Congress, he served 14 years in the Arizona legislature (including four years as president of the state senate).

Thus, he likely knows that CBP “is responsible for the inspection and processing of [aliens] who arrive at ports of entry or are encountered between ports of entry” and can place illegal migrants into expedited removal.

DHS Releasing Tens of Thousands of Illegal Migrants. Like the dough around the cream puff, however, that all just encases the really bad news, which is summarized in an enclosure to the letter. Biggs tweeted out the enclosure separately:

Biggs’ first question was straightforward: “How many aliens who were released from CBP custody without receiving an NTA have reported to ICE?”

In response, DHS reveals in that enclosure that between March 21, 2021 (when the department began — without legal authority — to release aliens with “Notices to Report”, or “NTRs”) and January 10, 2022 (when the enclosure likely began wending its way through the tortuous executive branch clearance process), CBP released almost 164,600 illegal migrants at the Southwest border.

Of those nearly 164,600 releases, 94,036 were released with NTRs, and 70,548 were released on what DHS terms “Parole Plus Alternatives to Detention (Parole+ATD)”. The latter is pure eyewash because “Parole+ATD” is really just “parole” — the release of an inadmissible alien into the United States. I almost expected to see a “TM” after “Parole+ATD”).

DHS Lacks “Prosecutorial Discretion” To Release Illegal Migrants. Those eye-popping numbers are bad enough, but worse is the fact that the enclosure claims that those aliens were released “via prosecutorial discretion”. Why that is “worse” requires a brief explanation.

As I have explained more times than I care to mention, Congress mandated in section 235(b) of the Immigration and Nationality Act (INA) that illegal migrants apprehended by CBP at the border be detained: Detained when they are apprehended, detained while they are processed, and detained until they are either granted immigration relief or protection or removed.

There are two exceptions to that detention rule. DHS can parole aliens from its custody under the very limited authority that Congress has given it in section 212(d)(5)(A) of the INA, or it can send those migrants back across the border in accordance with section 235(b)(2)(C) of the INA to await removal proceedings (the basis for the Migrant Protection Protocols, “MPP” or “Remain in Mexico”).

Why do I say that parole is “very limited authority”? Because that parole provision allows DHS to parole arriving aliens (like illegal migrants) “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

Based upon the language in the parole statute, the Court of Appeals for the Fifth Circuit recently held in Texas v. Biden that “DHS cannot use that power to parole aliens en masse”.

“Prosecutorial discretion” is grounded in an agency’s power to not enforce the law in individual cases, but the circuit court held there: “DHS’s pretended power to parole aliens while ignoring the limitations Congress imposed on the parole power” is not “nonenforcement; it’s misenforcement, suspension of the INA, or both” (you can read more about “suspension” here).

The Biden administration is asking the Supreme Court to review that decision, but until it is reversed, Texas is the law. Not to the folks at DHS’s Legislative Affairs branch, apparently, but perhaps instead of repeating basic concepts of immigration law to border-state congressmen on committees of jurisdiction, they could do some legal research themselves.

Taking this all one step further, the Fifth Circuit in Texas focused on two provisions in section 235(b)(2) of the INA, which governs DHS processing of alien applicants for admission (including, again, illegal migrants) who are not placed into expedited removal proceedings (which it appears few if any of the released aliens were, but if they were, they are clearly supposed to be detained).

The first was section 235(b)(2)(A) of the INA, which in the circuit court held “provides that, under certain circumstances, ‘the alien shall be detained’ during her removal proceeding”. The Fifth Circuit explained: “That’s obviously a mandatory statutory command — not a commitment to agency discretion.”

The second was section 235(b)(2)(C) of the INA, which again allows DHS to send illegal migrants back across the border to await their removal proceedings. Read in tandem, the Fifth Circuit held: “Those provisions cannot be read ... to give the Government unreviewable discretion to release anyone.”

Again, Texas is the law (for now, at least), but not law that DHS appears to either recognize or be following.

More basically, however, “prosecutorial discretion” is discretion to “prosecute”, or not. Once DHS has made that prosecutorial decision (and it is extremely questionable in the border context that DHS has the discretion not to prosecute illegal border crossers), it does not somehow have the authority to simply release them. That’s not “prosecutorial discretion” — it’s simply ignoring Congress’s mandates.

How Many Aliens Released at the Border Actually Showed Up at ICE Offices? Returning to the numbers, however, DHS claims that of the nearly 164,600 aliens encountered at the border whom it released, “110,176 have checked in at an ICE field office, while 20,055 others were still within their compliance window as of January 10, 2022.”

The “compliance window” referenced appears to be the 60 days that DHS has given illegal migrants released on NTRs to report to ICE offices, but even that much is not clear. Nor is it possible based on these numbers to calculate the “no-show” rate for noncompliant aliens.

In the best light, the no-show rate is greater than 20 percent, but of course, it could be higher because we have no idea how many of the 20,055 have not or will not show.

Then, there is the wording that DHS uses. Note that it does not say “110,076 aliens have appeared at an ICE office”, only that they “checked in”. That raises the question of whether DHS is allowing aliens released at the border in its non-existent prosecutorial discretion to “check in” at ICE without showing up.

Aliens could, for example, “check in” at an ICE office by calling into that office or sending a letter. Lest you think I am criticizing sloppy wording, there are facts and descriptions in that enclosure suggesting DHS is counting as “check-ins” aliens who have not actually appeared at an ICE office.

Here’s why I say that. Biggs’ second question was “How many ... aliens” released without a Notice to Appear (“NTA” — the charging document in removal proceedings) “have received an NTA?”

In response, DHS claimed that “ICE issued 62,099 charging documents to [aliens] who reported to an ICE field office”.

Did you see what DHS did there? It went from “110,176 aliens have checked in” to “62,099 charging documents were issued to aliens who reported to an ICE field office”. The letter and the enclosure are very meticulous, so there appears to be a difference between aliens who “checked in” with ICE and the number who “reported to” ICE offices.

Again, you may accuse me of being overly picayune, but understanding how the system works reveals a major discrepancy.

When an illegal alien who has not received an NTA reports to ICE, the ICE officer is supposed to do two things: Complete a Form I-213, “Record of Deportable/Inadmissible Alien” and issue an NTA with the date, time, and place of the alien’s first hearing in immigration court (known as the “initial Master calendar hearing”).

If the alien fails to appear at that hearing, the ICE attorney (who represents the government in immigration court) can offer the I-213 as evidence to show that the alien is removable as charged.

It appears, however, that of the 110,176 aliens who have “checked-in” at an ICE office, just 62,099 received NTAs — an NTA rate of just over 56 percent. Why?

Why indeed, because “thanks” to the onerous restrictions that DHS Secretary Alejandro Mayorkas has placed on immigration enforcement of aliens who are already in the United States, it is not as if ICE officers are too busy picking up illegal aliens to do paperwork. Something plainly appears to be afoot here, but whatever it is, ICE is not telling Biggs.

DHS Won’t Say How Many “No Shows” Have Been Arrested — Meaning Few if Any Were. In that vein, Biggs also asked: “How many aliens who have not reported to ICE have been arrested by ICE?” On that, DHS got cagey.

You see, DHS never answers the question. Rather, after a lot of blather, the department states: “Each case is handled individually, and compliance with reporting dates is only one factor ICE ERO officers review when determining what level of supervision is appropriate for a case.”

That answer is nonresponsive, which makes it appear (and can only lead one to the conclusion) that ICE isn’t going after any aliens who have failed to appear.

To DHS, Not Appearing Does Not Necessarily Make an Alien a Flight Risk. But, read that response again: “compliance with reporting dates is only one factor ICE ERO officers review when determining what level of supervision is appropriate for a case.”

The Board of Immigration Appeals (BIA) has held that there are only two factors to be considered in determining whether an alien should be detained: The danger that the alien poses to the community and to national security, and the alien’s risk of flight. That is the law, which ICE must follow.

DHS is saying, though, that even if the alien fails to show up, that does not make the alien a flight risk. Not showing up is the definition of “flight risk”.

Following the bouncing ball in DHS’s enclosure thus far: (1) DHS is using authority it doesn’t have to release tens of thousands of illegal migrants at the Southwest border. (2) Maybe the department is making those aliens show up at ICE offices after they are released to be served with an NTA, and maybe it isn’t. (3) Some of those aliens eventually get an NTA, but tens of thousands don’t. (4) If those aliens fail to “check in”/report to ICE, not much is done to go find them. (5) Just because an alien fails to appear, that does not make the alien — in DHS’s opinion — a “flight risk”.

DHS Is Not Even Complying with Its Own Restrictive Enforcement “Priorities”. Keep in mind that aliens entering the United States illegally on or after November 1, 2020, are one of the few (three, to be exact) “priorities” Mayorkas allows ICE officers to go after. They are deemed “Threats to Border Security”, and I would hardly argue with that characterization.

The other two “priorities” for immigration enforcement are “Threats to National Security” (terrorists and spies) and “Threats to Public Safety” (aliens posing “a current threat to public safety, typically because of serious criminal conduct”).

If this is how DHS approaches “border security” threats, I hazard to guess how many terrorists, murderers, and rapists the department is allowing to remain in this country.

DHS Can’t Say How Many Illegal Migrants It Has Removed — Suggesting None Have Left. Next, Biggs asked: “How many of those aliens have been removed from the country?” Here is DHS’s response, in toto: “At this time, ICE ERO is unable to statistically track the number of [aliens] released by CBP with a charging document or instructions to check-in with ICE who have been removed from the United States.”

That is hogwash. ICE knows exactly how many aliens it has removed, as proven by the fact that in its annual report (which still has not been released for FY 2021), ICE ERO states exactly how many aliens it has removed, and on what grounds.

What — did ICE ERO “incidentally” remove aliens who were released at the border who then failed to report? That only happens in maudlin “special episodes” of sitcoms. ICE removal is an exact business in the real world.

Follow-Up Questions I Would Ask DHS, if I Could. Respectfully, as a former congressional staffer with jurisdiction over DHS, I am offended on behalf of Rep. Biggs. If I were him, I would ask the following:

  1. On what specific authority in the INA is DHS releasing “applicants for admission” as defined in section 235(a)(1) of the INA, including illegal migrants apprehended by Border Patrol at the Southwest border?
  2. On what specific authority in the INA is DHS issuing illegal migrants “Notices to Report”?
  3. Does DHS consider the Fifth Circuit’s December 13, 2021, decision in Texas v. Biden, ___ F.4th ___ (2021) to be binding precedent with respect to its release of “applicants for admission” as defined in section 235(a)(1) of the INA, including illegal migrants apprehended by Border Patrol at the Southwest border? If it does not, explain why it does not consider that decision to be binding precedent.
  4. Are “applicants for admission” as defined in section 235(a)(1) of the INA, including illegal migrants apprehended by Border Patrol at the Southwest border, who are paroled into the United States being released under section 212(d)(5)(A) of the INA, section 236(a)(2)(B) of the INA, or under some other provision in law? If it is some other provision, please provide the specific authority.
  5. Are “applicants for admission” as defined in section 235(a)(1) of the INA, including illegal migrants apprehended by Border Patrol at the Southwest border, who are paroled into the United States being issued Notices to Appear? If any are not, please explain why they are not being issued Notices to Appear. Include citations to the INA and case law.
  6. Does DHS require “applicants for admission” as defined in section 235(a)(1) of the INA, including illegal migrants apprehended by Border Patrol at the Southwest border, who are released by DHS into the United States — either on parole or with Notices to Report — to appear within 60 days in person at an ICE field office? For any aliens identified in the preceding sentence who are not required to appear at an ICE field office in person, does ICE require them to check in telephonically, in writing, or in some other manner? If it is some other manner, please describe how those check-ins occur. Please state how many aliens have been required to report since March 21, 2021, in each manner.
  7. How many “applicants for admission” as defined in section 235(a)(1) of the INA, including illegal migrants apprehended by Border Patrol at the Southwest border, who have been released into the United States on parole, with Notices to Appear, or with Notices to Report and who have failed to report as required have been (1) investigated; (2) questioned; (3) apprehended; (4) detained; (5) prosecuted; (6) been ordered removed; and (7) removed from the United States by ICE or any other agency of the U.S. government?
  8. Do ICE attorneys seek removal orders for all “applicants for admission” as defined in section 235(a)(1) of the INA, including illegal migrants apprehended by Border Patrol at the Southwest border, who fail to appear at their initial master calendar hearings? If not, why not?
  9. Does DHS consider aliens who fail to appear at removal hearings in immigration court or at required check-in appointments with ICE to be “flight risks”? If not, why not? If an alien fails to appear at a removal hearing in immigration court or at a required check-in appointment with ICE, does ICE open an investigation to locate and detain that alien? If not, why not?

It's Time for Transparency. A lack of transparency in its immigration-enforcement efforts has been a significant problem for DHS under the Biden administration. Talking down to congressmen and eliding key facts does not hide the sad state of its current border enforcement efforts. If the president thinks his immigration policies are a good idea, he should be trumpeting — not muffling — DHS’s efforts. Now’s the time to start.