By Andrew R. Arthur, January 12, 2022
In an October 19 letter to DHS Secretary Alejandro Mayorkas, Sen. Ron Johnson (R-Wisc.) asked DHS about illegal migrants released by CBP on parole, and with so-called “notices to report” (NTRs) who failed to subsequently report to ICE offices, as required. DHS eventually responded, and on January 11, Sen. Johnson issued a release summarizing that response. The response is explosive, revealing a breakdown in border enforcement with migrants now pouring into the interior of the United States.
How Border Enforcement Is Supposed to Work. To understand how CBP’s policy of releasing aliens with NTRs — a process the Biden administration implemented on March 21 — has degraded immigration enforcement at the Southwest border, it’s important to understand how the system is supposed to work.
Under section 235 of the Immigration and Nationality Act (INA), aliens apprehended entering illegally must either be placed into expedited removal proceedings (in which they can be quickly removed without appearing before an immigration judge), or issued a notice to appear (NTA) that complies with the requirements in section 239(a)(1) of the INA and placed into removal proceedings.
If an alien in expedited removal requests asylum or claims a fear of harm if returned, the alien is sent to an asylum officer at U.S. Citizenship and Immigration Services (USCIS) to determine whether he or she has a “credible fear” of persecution.
That credible fear interview is a screening process to determine whether the alien may be eligible for asylum. If the alien receives a “positive credible fear determination”, he or she is supposed to be issued an NTA as well, to apply for asylum before an immigration judge in removal proceedings. Aliens who receive “negative credible fear determinations” are supposed to be removed.
Regardless of whether they are subject to expedited removal or simply issued an NTA, section 235 of the INA mandates that illegal migrants be detained throughout the entire process, from the point at which they are apprehended to either an asylum grant or removal.
DHS’s only legal alternatives to such detention are either returning the illegal migrant back across the border to await removal proceedings (as in the Remain in Mexico program) pursuant to section 235(b)(2)(C) of the INA or paroling the alien in accordance with section 212(d)(5)(A) of the INA, which is essentially a form of release.
The parole provision does not allow DHS to simply release aliens en masse, as the Fifth Circuit recently held in Texas v. Biden (more on that case below). Rather, DHS can only parole illegal migrants individually, “on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
The Border Disaster and Notices to Report. The problem is that in many cases, CBP under the Biden administration has been dispensing with detention, expedited removal, and the issuance of NTAs to illegal migrants and instead simply releasing aliens into the United States with NTRs.
This process not only contravenes the scheme Congress mandated in section 235 of the INA (as explained above) but unlike NTAs, there is no statutory authority whatsoever for CBP to release aliens with nothing more than an NTR.
In any event, aliens issued NTRs are supposed to show up at the ICE office nearest to their destinations in the United States within 60 days of release. Even if all of them did report to ICE, however, releasing migrants with NTRs simply encourages even more foreign nationals to enter the United States illegally.
That’s because the detention mandate is there for a reason, and not just because Congress expects aliens to enter the United States legally. It’s in the INA because aliens enter the United States illegally to live and work here indefinitely. When illegal migrants are released by DHS on NTRs, that is exactly the benefit that they receive, and it encourages other foreign nationals to follow.
You don’t have to take my word for it, however. In an April 2019 report, a bipartisan federal panel tasked with examining illegal entry by alien children and adults in family units (FMUs) determined that “[b]y far the major ‘pull factor’” encouraging aliens in FMUs to enter the United States illegally was the then-current practice “of releasing with a NTA most illegal migrants who bring a child with them”.
That was during a period under the Trump administration in which CBP was still issuing NTAs to aliens before releasing them — not NTRs.
This process still violated the detention mandate in section 235 of the INA, but illegal migrants issued NTAs were assigned immigration court dates, and if they failed to appear, an immigration judge would order them removed. The only thing left for ICE to do at that point was pick them up and deport them.
That’s because, as I explained in a July 29 post, NTAs have a statutory basis in the INA, and therefore have “real legal effect”.
By contrast, NTRs “have no congressional imprimatur whatsoever”. My colleague Mark Krikorian has correctly described CBP’s release of aliens with NTRs as “essentially immigration enforcement by the honor system”. The responses that Sen. Johnson received revealed that this system worked about as well as reasonable people would expect — not well at all.
Aliens “Processed” Under the INA vs. Aliens Expelled under Title 42. Sen. Johnson first noted in his request letter that DHS had “processed” almost 273,400 aliens under the INA between January 1 and August 31, 2021.
To clarify, immediate expulsion of illegal entrants pursuant to orders issued by CDC under Title 42 of the U.S. Code in response to the Covid-19 pandemic has been the rule since late March 2020, but under the Biden administration, DHS has been increasingly processing them (putatively for removal proceedings or expedited removal) in accordance with the INA in lieu of expulsion under Title 42.
More than Half of Aliens Released on Notices to Report Have Failed to Show Up. Sen. Johnson asked DHS to tell him how many of those nearly 273,400 aliens processed under the INA had been issued NTRs, how many aliens issued NTRs had shown up at local ICE offices within that 60-day reporting window, and how many of those aliens were then issued NTAs (as the INA requires).
His January 11 press release linked to DHS’s responses and summarized the results; in brief, they are dismal.
Between March 21 (when DHS began releasing aliens on NTRs) and August 31, of the just fewer than 273,400 aliens that DHS had processed under the INA, 104,171 were released with NTRs.
Of those 104,171 aliens issued NTRs, 49,859 (47.9 percent) reported to ICE offices: 37,161 within the 60-day reporting window, and 12,698 others more than 60 days after they were released.
More than 45 percent — 47,705 — of the aliens released by DHS for whom the 60-day reporting window had closed still hadn’t shown up by the point that DHS responded to Sen. Johnson, and 6,607 others (6.3 percent) were still within the 60-day reporting window but hadn’t shown up yet, either.
Combining the two numbers, more than half of the aliens released by DHS with NTRs between March 21 and August 31, 2021, had failed to appear by the point that DHS replied to Sen. Johnson’s query.
This data appears to contradict testimony Mayorkas gave at a September hearing of the Senate Homeland Security and Governmental Affairs Committee.
At that hearing, Sen. James Lankford (R-Okla.) asked the secretary how many aliens released on NTRs had reported.
Mayorkas responded: “Senator, my understanding is of that figure, approximately 75 percent have indeed reported within the time frame or within their reporting time frame. And as to those who have failed to report that would qualify as an enforcement priority of ours.”
There is a wide disparity between 75 percent of aliens released on NTRs who have reported and more than 45 percent (or more) who have failed to do so.
ICE Issued NTAs to Fewer than 16 Percent of Aliens Released with Notices to Report. But wait — it gets worse. Of the 49,859 aliens who showed up at ICE offices after they were released on NTRs, just 16,293 were placed into removal proceedings through the issuance of an NTA. That means that of the more than 104,000 aliens released with NTRs, just 15.6 percent were placed into removal proceedings.
Under section 235 of the INA, none of those aliens should ever have been released, but if they were released, they should at least have been issued NTAs. When fewer than 16 percent of migrants apprehended at the border are placed into removal proceedings, the entire process becomes unmoored from any of the requirements in the INA.
DHS Refused to Say How Many Aliens Had Been Paroled. Sen. Johnson also asked Mayorkas how many of those nearly 273,400 aliens had been released on parole and under what provision in the INA parole was issued, and on this question DHS got cagey.
The senator’s question was straightforward, but the department never revealed how many illegal migrants it had paroled. Instead, it stated:
In general, a noncitizen who is paroled into the United States is not placed into removal proceedings until the parole is terminated. When considering whether to grant or terminate parole on a case-by-case basis, CBP follows the provisions for issuing parole under section 212(d)(5) of the [INA].
I suppose the second part is responsive (although it requires some follow-up, which Mayorkas is bound to receive), but the first part — about not placing paroled aliens into removal proceedings unless and until their parole is revoked — is nonsensical.
Is Biden Administration Granting Paroled Illegal Migrants De Facto Amnesty? Aliens arriving in the United States through a port of entry or present in the United States without permission (including illegal migrants) are “applicants for admission” pursuant to section 235(a)(1) of the INA, even if they have been paroled.
That means that they are amenable to removal proceedings to determine whether they are admissible to the United States under section 212 of the INA. If DHS under the Biden administration has suddenly determined that aliens it has paroled into the United States are to be allowed to remain indefinitely — without being placed into removal proceedings — it is essentially granting those parolees de facto amnesty.
Curiously, this fact (if true) has not come up in the litigation in Texas (or if it has, it has not made its way into any of the decisions issued in that matter), in which the states of Texas and Missouri are contending that the administration improperly terminated the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”).
The question of whether the Biden administration has been properly paroling aliens into the United States in accordance with section 212(d)(5)(A) of the INA has been a key issue in that matter.
Simply put, if the president’s DHS is granting the quasi-legal status of parole to an untold number of illegal migrants for an indefinite period without placing them into removal proceedings, that is a big deal and one that calls into question whether DHS is complying with section 2(a) of the Secure Fence Act of 2006 (which I analyzed at length in an August post).
That provision (which then-Sen. Joe Biden voted for) requires DHS to “achieve and maintain operational control over the entire international land and maritime borders of the United States”.
“Operational control” is defined in section 2(b) therein as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”. (Emphasis added.) Needless to say, ushering “unlawful aliens” into the United States via parole is the opposite of preventing their entries.
That is another issue that Congress — and the courts — are sure to explore further.
Tens of Thousands of Migrants Shipped into the Interior. One final point: DHS’s response reveals that more than 37,100 aliens have been bused — at government expense — to release points in the United States and that more than 84,000 have been flown to unspecified locations within the United States on the taxpayer’s dime.
Of the aliens who traveled by air, more than 32,500 were sent to ICE detention, but it is unclear how many of them were subsequently released.
As for an additional 51,750 aliens, however, DHS doesn’t reveal whether they were flown to release points and/or to detention. Sen. Johnson’s request letter could have been clearer on this point, but DHS still failed to identify those aliens’ final destinations — a question that the senator did ask, and one that would likely shed light on whether they were released or not.
When Exigencies Become Normal, the Administration Must Come Up with a Plan. The requirements in the INA mandating how DHS is supposed to process illegal migrants are strict, but both that department and I live in the real world when it comes to migrant surges.
As explained above, CBP under the Trump administration was confronted with so many aliens in family units in FY 2019 (nearly 473,700 during the “border emergency” that fiscal year, or nearly 56 percent of all Border Patrol apprehensions at the Southwest border in that time period) that it was forced to develop temporary “workarounds”.
Under Trump that meant temporarily releasing family-unit aliens in FMUs with NTAs. Soon, however, that administration responded to the surge by implementing “Remain in Mexico”, under which illegal migrants (and in particular illegal migrants in FMUs) were sent back across the border to await their removal hearings.
MPP resolved the FMU border exigency: From nearly 84,500 aliens in family units apprehended at the Southwest border in May 2019, such apprehensions fell to just under 15,900 four months later. Adult migrants knew that they were not simply going to be released into the United States if they showed up with a kid, so they (largely) stopped coming.
The Biden administration has repeatedly attempted to end MPP, and to terminate other Trump policies that had brought control to the Southwest border, without substituting promised “guardrails” that would deter illegal entries.
Even the editorial board at Bloomberg Opinion (which no one will confuse with the one at, say, National Review) has been forced to admit that Biden’s evisceration of Trump’s immigration policies “has contributed to upheaval at the border and encouraged more people to risk their lives trying to reach the U.S.”
Until the Biden administration comes up with serious immigration policies, what had been an exigent border crisis will be the “new normal”. That means that the president and Mayorkas can no longer simply rely on the plainly ineffective NTR work-around or evade questions about parole while shipping tens of thousands of aliens into the interior. The INA means what it says, and courts won’t allow DHS to ignore it forever.
This article was originally published by the Center for Immigration Studies.