Spikes in Rescues and Dangerous Criminal Apprehensions Show the Border Is Open

Current ICE restrictions are a Mobius loop of stupidity and non-enforcement

By Andrew R. Arthur on June 22, 2021

Border Patrol search-and-rescue efforts at the Southwest border have spiked this year, as have arrests of aliens with criminal convictions (including sex offenses). As counterintuitive as it may sound, these increases reveal — contrary to recent contentions of DHS Secretary Alejandro Mayorkas and others in the Biden administration — that the border is wide open. They also show that Biden’s restrictions on ICE are imperiling both Americans and illegal migrants.

First, the facts. Thus far in FY 2021, Border Patrol agents at the Southwest border have performed 6,898 searches and rescues — 36 percent more than in all of FY 2020 (5,071) and a 40-percent increase over FY 2019 (4,920).

Keep in mind that FY 2019 was not the halcyon “good old days” along the border, except in comparison to the present disaster. Then-DHS Secretary Kirstjen Nielsen declared a “border emergency” on March 29, 2019, based upon “a cascading crisis at our southern border”. At the time, Nielsen asserted, bluntly: “The system is in freefall.” The current secretary should be so honest (or aware) about what’s going on.

Things did not improve until September of that year, and Border Patrol apprehensions of illegal migrants at the Southwest border peaked at 132,856 in May 2019 (they had been “just” 92,833 in March, when Nielsen made that statement).

To put these figures into context, that May 2019 figure was the highest monthly total for Border Patrol apprehensions at the Southwest border since March 2006, when they exceeded 160,000. Last month, by contrast, Border Patrol apprehensions at the Southwest border exceeded 172,000 — a 21-year high, excluding March and April 2021.

In addition, already in FY 2021, Border Patrol agents at the Southwest border have apprehended almost 7,000 aliens with prior criminal convictions. That is a 183 percent increase over all of FY 2020 (2,438) and 62 percent more criminal alien apprehensions than in all of FY 2019 (4,269).

Those increases have not been uniform across the border, or among criminal offense categories. For example, on June 20, Fox News reported that agents in the Border Patrol’s Del Rio sector have caught more than 31 times as many convicted sex offenders in FY 2021 as they did in the same period (October to May) in FY 2020.

If Border Patrol is saving more migrants and capturing more criminals, that’s good, right? Well, no, because those figures indicate that aliens are taking more dangerous pathways to avoid agents, and that more criminals are taking advantage of a border in chaos to return to the United States.

On the latter point, at a June 15 hearing before the Senate Judiciary Committee, former Acting USCIS Director Joe Edlow testified that an estimated 40,000 aliens per month are crossing illegally without being apprehended.

Not that agents are falling down on the job — Sen. John Cornyn (R-Texas) revealed at that hearing that 40 percent of Border Patrol agents are now “off the line” caring for child migrants. Agents who are handing out blankets and changing diapers can’t arrest anyone.

Criminals know this, and are exploiting the situation. Cornyn explained that “cartels and human smugglers have figured out our immigration laws and how to exploit our vulnerabilities and overwhelmed our capacity to deal with them.”

As I have explained those vulnerabilities many times in the past, they are policies that facilitate the release (in clear contravention of law) of illegal migrants claiming a fear of return, a 2015 district court decision that encourages adult migrants to enter illegally with a child to gain quick release from custody (again, in violation of statute), and a 2008 law that encourages family members to have unaccompanied children from non-contiguous countries smuggled into the United States.

The Biden administration, however, does not see things quite as clearly as the senior senator from Texas — the state that shares the largest border with Mexico, is receiving the lion’s share of illegal migrants, and bears the primary brunt of the chaotic illegal-migrant situation.

Instead, Mayorkas blames the current surge at the border on various issues that are largely insoluble (at least in the foreseeable future and without a massive transfer of wealth): poverty, violence, and corruption in Mexico, El Salvador, Guatemala, and Honduras, from which the vast majority of illegal migrants hail.

Respectfully and logically, given that fact that he actually lives near the border, Cornyn should be considered more of an expert on what is going on there than armchair generals at DHS in Washington or administration flaks.

Regardless of the causes of illegal migration, however, a border surge like the ongoing one gives criminal aliens who have been deported (at least once) cover and opportunity to return to the United States.

When criminal aliens are apprehended and identified by Border Patrol agents, they usually have few or no avenues for relief, and are quickly sent home. The fact that so many aliens (at least some of whom, as noted, have committed pretty heinous crimes) are coming this year reveals they think that now is the time to take advantage of an overwhelmed Border Patrol to reenter this country.

Border Patrol is still going to catch some of those criminals (hence the increase), but that raises the specter of just how many of those 40,000 aliens who are eluding Border Patrol agents monthly are returning after being convicted of significant — and dangerous — crimes.

That brings me to my second point: how restrictions on ICE enforcement under the Biden administration are also encouraging aliens — and in particular criminal aliens — to try and evade Border Patrol and enter illegally.

As I explained in a May 26 post, ICE officers are now effectively barred from questioning, apprehending, detaining, and deporting any but the most recent entrants or most dangerous criminal aliens in the United States. Those policies are set forth in a February 18 memo from then-Acting ICE Director Tae Johnson.

Under that memo, only aliens who pose a danger to the national security, or who entered on or after the (completely arbitrary) date of November 1, 2020, or who have been convicted of aggravated felonies are “priorities” for removal, meaning that ICE officers can actually question, arrest, detain, prosecute, and remove them — sort of.

I say “sort of” for three reasons. First, excluding the aliens themselves, no one below the level of God (including Johnson and Mayorkas) knows whether any given alien who managed to elude Border Patrol entered prior to or after midnight on November 1, 2020.

The only way for ICE officers to get that information (aside from through divine intervention) is to question the aliens themselves, but the Johnson memo actually bars those officers from questioning aliens about when they entered unless the officers already know when they entered, in a Mobius loop of stupidity and non-enforcement.

Second, aliens who have been convicted of aggravated felonies are only going to come on to ICE’s radar if they have been arrested by federal, state, or local law enforcement for committing some new offense.

That’s good, because recidivism rates for criminals are high, meaning that other law enforcement officers are likely to encounter them after their next offense.

According to one 2018 study from the DOJ’s Bureau of Justice Statistics (BJS), released criminals tracked by BJS had an average of five new arrests, 68 percent of which occurred within three years of those criminals’ initial releases.

It’s bad, however, because (1) that means that there will be new victims; and (2) some of the law enforcement officers who apprehend those criminals will be in so-called “sanctuary” jurisdictions, and therefore impeded in (if not outright barred from) telling ICE that they have come across an already convicted criminal alien.

Third, ICE officers are further barred under the Johnson memo from questioning, arresting, detaining, and deporting even those aliens who have been convicted of aggravated felonies unless and until those officers consider (among other factors) “the recency of the criminal activity”.

So, if an alien has been removed after committing an aggravated felony, and waits years to reenter the United States illegally, that passage of time will work in the alien’s favor and make it less likely that he or she will be arrested by ICE and removed again.

To recap: There are so many illegal migrants that Border Patrol can’t apprehend them all, and an increasing number are falling into distress as they attempt to exploit the border disaster to enter illegally in remote and inhospitable locations. And Biden administration restrictions on ICE enforcement encourage even more aliens (and in particular alien criminals) to attempt to evade Border Patrol and enter illegally.

Despite the fact that its current policies clearly both endanger the American people and imperil migrants, the administration has failed to explain why it’s imposing asinine restrictions on ICE and not doing more to prevent illegally entries. Maybe they should ask John Cornyn for his thoughts.