Title 42 Expulsions Dropped, ‘Humanitarian Releases’ Surged, at SW Border in November

The limits of judicial power

By Andrew R. Arthur on December 30, 2022

CBP failed to release its November Southwest border statistics until Friday, December 23 — the day Congress passed a massive $1.7 trillion funding package and went home. When they were released, the numbers revealed Border Patrol had apprehended more than 206,000 illegal migrants last month — the highest total for any November and an increase from number in October, itself a monthly record. Even as border apprehensions have soared, expulsions under Title 42 have declined, while “humanitarian” migrant releases have surged — revealing the limits of judicial power. Let me explain.

November Apprehensions. As noted, Border Patrol agents at the Southwest border apprehended more than 206,000 illegal entrants in November — nearly 144,000 single adults, just over 12,800 unaccompanied alien children (UACs), and more than 49,500 adult migrants entering illegally with children in “family units” (FMUs).

That’s a 23 percent increase in total apprehensions compared to November 2021, a nearly 31 percent increase in single adults, a 14 percent increase in aliens in FMUs, and a 7 percent decline in UACs.

There was a significant (18 percent) decline in the number of Mexican nationals apprehended compared to November 2021, while apprehensions of nationals of the “Northern Triangle” countries of Central America (El Salvador, Guatemala, and Honduras) fell by 42.5 percent. Those decreases were more than offset by a surge (86 percent increase) in the number of Venezuelan, Cuban, and Nicaraguan nationals.

The number of migrants who were apprehended from all other countries also skyrocketed — from fewer than 17,500 in November 2021 to more than 53,500 last month, a 200 percent increase. The border disaster wrought by President Biden’s feckless border policies has truly gone global.

Title 42. Beginning in March 2020, the CDC issued a series of orders pursuant to Title 42 of the U.S. Code directing DHS to expel all illegal entrants so as to curb the introduction and spread of Covid-19 following a declaration by the World Health Organization of a worldwide novel coronavirus pandemic.

By the time the first of those orders was implemented, the Trump administration had already adopted policies that successfully deterred migrants from entering the United States illegally. Notably, however, 2020 was a presidential election year, and then-candidate Joe Biden derided those policies in a series of position papers, most of which were overlooked by the press amidst the pandemic.

Between his electoral victory and inauguration, Biden moderated his tone somewhat. The president-elect explained that, while he would end Trump’s border policies, he would only do so “at a slower pace than he initially promised, to avoid winding up with '2 million people on our border’”, and only after “’setting up the guardrails’ to find a solution to the immigration issue”.

After assuming office, however, Biden flip-flopped again, quickly terminating those Trump border policies while steadfastly refusing to do anything to deter the flood of migrants that inevitably ensued.

The one policy that Biden kept for a while was Title 42, likely for two reasons. First, those CDC orders were premised on public-health policy, not “border control” per se. Second, he relied on serial and ongoing Covid-related public-health emergency determinations to maintain costly Medicaid expansions and forgive student-loan debt. Ending Title 42 would have been seen as inconsistent.

I say “for a while” because Biden announced in April that he would end Title 42 effective May 23, notwithstanding the fact that DHS had warned that doing so would more than double illegal entries.

Concerned about the effects of such an increased migrant surge on their coffers, a group of states sued the CDC in federal court in Louisiana for the right to be heard before Title 42 ended. On May 20, the judge in that case (CDC v. Louisiana) enjoined the end of Title 42.

Title 42 Expulsions Plummet. The administration appealed that decision to the Fifth Circuit but continued to implement Title 42 — sort of. Between October 2021 (the first month of FY 2022) and May, more than 57 percent of all aliens apprehended by Border Patrol at the Southwest border were expelled under Title 42.

In June, that dropped to just over 42 percent; in July, 41.7 percent; in August, 40 percent; in September, 35 percent. Title 42 expulsions increased (slightly) to 38 percent in October, before dropping again to 31.6 percent in October. This figure shows total Border Patrol Southwest border apprehensions and Title 42 expulsions from April 2020 to November.

Southwest Border Apprehensions
and Title 42 Expulsions

Source: “CBP, Nationwide Encounters”

Part of that precipitous decline can be attributed to the increase in migrants who aren’t from Mexico or the Northern Triangle. The Mexican government must take back its own nationals, and to a slightly lesser degree is willing to accept returned Salvadorans, Guatemalans, and Hondurans, but has shown a reluctance to accept migrants from farther abroad.

That said, there is little evidence that the Biden administration has pressed Mexico City to agree to take back those “others”.

President Trump, by contrast, was more than willing to use the economic and diplomatic power of the United States to cajole the Mexican government into accepting third-country nationals pursuant to his “Migrant Protection Protocols” (MPP), better known as “Remain in Mexico”. When it comes to Title 42 expulsions, however, Biden has not shown the same fortitude.

“Humanitarian Releases” Surge. As the percentage of migrants expelled under Title 42 has plummeted, the number of migrants apprehended by Border Patrol and released into the United States on “humanitarian” grounds has surged.

In June, Border Patrol released just fewer than 60,700 migrants on “parole” or their “own recognizance” (OR), a figure that remained fairly steady in July (66,424) and August (about 65,000). Parole and OR releases surged, however, to nearly 105,000 in September.

At the same time, however, CBP reports that there were nearly 19,500 “humanitarian releases” in June, nearly 25,600 in July, more than 33,600 in August, and 9,240 in September. The agency fails to explain, however, whether those releases were included in or in addition to the migrants Border Patrol released on parole and OR.

In any event, Border Patrol released nearly 90,000 migrants on parole or OR in October, a month in which CBP reports that there were nearly 90,000 Border Patrol humanitarian releases. That would suggest that the sum total of releases on parole and OR is roughly equivalent to humanitarian releases.

The problem is that for November, CBP reports that Border Patrol released more than 105,000 aliens on parole and OR, a month in which there were 102,525 Border Patrol humanitarian releases. Those figures are close, but not close enough to resolve the issue.

In any event, two points are in order. First, the Immigration and Nationality Act (INA) mandates that DHS detain all illegal entrants, from the time they are apprehended until they are either granted asylum or removed. There may be a handful of aliens legitimately released on parole, but not 88,851, the total for November, and DHS has no authority — whatsoever — to release migrants on OR.

Second, and relatedly, DHS has only limited authority to release migrants on humanitarian grounds. There may be a few illegal migrants legitimately released on parole for what could be termed “humanitarian purposes” (because they need emergency medical care or must donate a kidney to a relative, for example), but there’s no way that was true of 102,525 migrants in November.

Texas v. Biden. DHS’s authority to release illegal entrants apprehended at the Southwest border is at the heart of Texas v. Biden, a case that facially concerns the administration’s authority to terminate Remain in Mexico.

Texas has been through the district and circuit courts, up to the Supreme Court, and back again. The administration has argued throughout that it has virtually limitless authority to release apprehended migrants due to a lack of detention space, but both the Fifth Circuit and the district court (twice) have rejected that argument. The justices, for their part, have taken a pass on the issue thus far.

Never, however, has the government argued that it has the authority to release migrants on purely humanitarian grounds, again except for on parole. The district court and circuit court, though, have expressly rejected any contention that DHS can release migrants en masse on parole at the Southwest border.

Don’t Get Too Excited About Remain in Mexico or Title 42. What these figures demonstrate are the limitations on judicial power to force the administration to do anything when it comes to immigration.

In Texas, for example, the latest district court order vacated the administration’s most recent attempt to terminate MPP. That’s fine, except the court lacks any real power to force DHS to return any migrant back across the border.

The same is true of a recent Supreme Court opinion in Arizona v. Mayorkas that stayed a district court order ending Title 42, indefinitely. The justices can force a continuance of Title 42, but even they lack the authority to compel the Biden administration to expel illegal entrants.

That said, respect for the separation of powers between the three branches of our federal government is a norm in our constitutional order, so you can expect the Biden administration to pay lip service to the court orders in Texas and Arizona by returning a handful of migrants under Remain in Mexico and expelling a few under Title 42 (respectively).

Don’t get too excited about either MPP or Title 42. If anything, those court orders will simply provide cover for the Biden administration to do more of the same in response to the ongoing and burgeoning disaster at the Southwest border — refusing to deter illegal entrants while demanding more money from Congress to ship migrants across the United States.