DHS Watchdog Issues Damning Report on Biden’s Migrant Releases
The DHS Office of Inspector General (DHS IG) last week issued a redacted report captioned “DHS Does Not Have Assurance That All Migrants Can be Located Once Released into the United States”. Don’t let the anodyne header fool you — this is a damning report of agency failures to even attempt to keep track of the millions of Southwest border migrants blithely released into the United States under President Biden, and one that underscores the national-security vulnerabilities of the administration’s overarching non-detention policies. It details a game that is rigged against the safety and security of the American people, and I can only imagine what the unredacted version has to say.
Biden’s Border Surge. From February 2021 (Joe Biden’s first full month in office) to the end of July 2023, Border Patrol agents at the Southwest border apprehended just over 5.227 million illegal entrants.
Of those apprehended migrants, more than 2.396 million were expelled under CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic. Those CDC orders were lifted at 11:59 PM on May 11, 2023, and no migrant has been expelled pursuant to Title 42 since.
Conversely, 2.83 million-plus illegal migrants apprehended at the Southwest border were subject to removal from the United States under the Immigration and Nationality Act (INA) in lieu of Title 42 expulsion.
Note that there’s a big difference between an alien being “subject to removal” under the INA and actually being deported from the United States. Through July 30, 2023, under the Biden administration’s border non-detention policies, at least 2,289,990 illegal migrants encountered by CBP at the Southwest border have been released into the United States, and nearly all of them are still here.
Almost all of those aliens were released in violation of the INA, which requires DHS to detain every inadmissible “applicant for admission” at the Southwest border, including illegal entrants and aliens deemed inadmissible at the ports of entry.
I say “at least”, because hundreds of thousands of additional migrants encountered by CBP at the Southwest border were released into the United States, either by officers at the agency’s Office of Field Operations (OFO) or by ICE after they were transferred by CBP to ICE for detention. The administration, however, refuses to disclose how many of those migrants have been released, and in the case of OFO at least, its concealment of that figure is blatant.
Why So Many Illegal Migrants Now? As those figures suggest, Border Patrol set a yearly record for Southwest border apprehensions in FY 2021, a record they broke in FY 2022, when agents apprehended a whopping 2.2 million-plus illegal entrants at the U.S.-Mexico line.
Why are so many foreign nationals entering the United States now? The administration blames “hemispheric conditions” such as “violence, food insecurity, severe poverty, corruption, climate change, the continuing effects of the COVID-19 pandemic, and dire economic conditions” for that surge.
Some of those conditions are transitory, but others are endemic, and recent history reveals things were much worse in the rest of the world in the recent past, but we never saw more than five million aliens entering the country in just 30 months before. So — are those “hemispheric conditions” really the driving force behind Biden’s border surge?
The answer is “no”, as U.S. district court Judge T. Kent Wetherell II explained in his March 8 opinion in Florida v. U.S. That case is a legal challenge brought by the state of Florida to the administration’s illegal migrant release policies, and in shutting at least one of those policies (“Parole+ATD”, discussed below) down, the court held:
There were undoubtedly geopolitical and other factors that contributed to the surge of aliens at the Southwest Border, but [the administration’s] position that the crisis at the border is not largely of their own making because of their more lenient detention policies is divorced from reality and belied by the evidence. Indeed, the more persuasive evidence establishes that Defendants effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course — assuming, of course, that the aliens do not simply abscond before even being placed in removal proceedings, as many thousands have done. [Emphasis added.]
Every highlighted portion of that paragraph is reflected in and bolstered by the DHS IG’s report.
Biden’s Southwest Border Release Schemes. The Biden administration has used three different schemes to release illegal migrants into the United States: (1) “own recognizance” (OR) releases under section 236(a) of the INA, pursuant to which aliens are served with Notices to Appear (“NTAs”, the charging documents in removal proceedings) and issued court dates before they were released; (2) “parole” releases under section 212(d)(5)(A) of the INA, wherein aliens are simply released indefinitely into the United States and directed to appear in the future at the nearest ICE office to be issued NTAs; and (3) so-called “prosecutorial discretion” releases with “Notices to Report” (NTRs) to the nearest ICE office to be served with charging documents, which has no legal basis in the INA.
NTRs and OR releases were CBP’s main choices at the outset of the administration, but as time went on, Biden’s DHS turned to the aforementioned “Parole+ATD” (parole with so-called “alternatives to detention”) as the chosen border release tool.
Judge Wetherell explained that the reason why agents preferred NTRs and Parole+ATD over serving migrants with NTAs and giving them court dates had everything to do with agency convenience and nothing to do with the law or border security: “The … record indicates that the ‘processing time’ for issuing a NTA is between 2 to 2.5 hours, whereas Parole+ATD only takes 15 to 30 minutes.”
In other words, agents were directed to get migrants out of custody as quickly as possible, and critically, the court continued: “It is implausible that [Border Patrol agents] could meaningfully assess an alien’s individual circumstances in 15 to 30 minutes.”
“DHS Does Not Have Assurance That All Migrants Can be Located Once Released”. That brings me to the DHS IG report, which runs 35 pages with more than a few major redactions.
The DHS IG never even questions the legality of those NTR, OR, and Parole+ATD release schemes (likely because such issues are not in the office’s remit), but instead focuses on the U.S. addresses those aliens provided to DHS at the time they were released.
Specifically, the office reviewed 981,671 records involving migrants released by Border Patrol between March 2021 and August 2022, and determined that more than 177,000 of them were released after providing U.S. addresses that were either incomplete, invalid (the address did not exist), or missing, meaning that they were released having provided no address at all.
In an understatement for the ages, the DHS IG noted:
ICE must be able to locate migrants to enforce immigration laws, including to arrest or remove individuals who are considered potential threats to national security. The notable percentage of missing, invalid for delivery, or duplicate addresses on file means DHS may not be able to locate migrants following their release into the United States.
By “may not be able to locate migrants”, the DHS IG means “ICE will have to expend valuable and limited resources to locate those aliens, and then, likely never will find them.”
“Invalid for delivery” addresses were ones that lacked critical information, such as apartment numbers, or were at what the DHS IG termed “non-existent or uninhabitable addresses”, including restaurants, churches, bus stations, car dealerships, and — in at least one instance — a DHS office in Illinois, perhaps the best example of the metaphorical “bureaucratic self-licking ice cream cone”.
With respect to “duplicative” addresses, the DHS IG noted:
Based on our analysis, 80 percent (790,090 of 981,671) of addresses were recorded at least twice during an 18-month period, some of which were provided by families upon release. More than 780 of these addresses were used more than 20 times. These families provided addresses that may be unsafe or have overcrowded living conditions based on multiple migrants using the same address. For example, DHS released 7 families, comprising 12 adults and 17 children, to a single-family 3-bedroom New Jersey home in a 70-day period. [Emphasis added.]
Those are all important points, which I will discuss in the future.
In addition, seven addresses were used more than 500 times, “some of which were other Federal agency locations and charities”. While nothing bars aliens from giving charities’ addresses to CBP, both ICE and the immigration courts advise against agents accepting them, in the case of ICE “because charities do not always share updated migrant addresses with ICE” (no big surprise), and in the case of the courts “because legal documents should not be sent to locations where migrants temporarily reside”.
Of 981,671 records involving migrants released by Border Patrol, more than 177,000 of them provided U.S. addresses that were either incomplete or invalid or they were released having provided no address at all.
Perhaps it is understandable that Border Patrol agents were so overwhelmed by the crush of migrants that they could not verify that addresses were valid, or that they accepted addresses of charities (although at least one Border Patrol “location” did not accept such addresses), but nothing explains the more than 54,000 aliens who were released without agents recording any address at all before release.
In fact, agents failed to record a forwarding address in 26 percent of cases involving migrants who were released with NTRs, proving a point my colleague Mark Krikorian made in July 2021 when he described Notice to Report releases as “essentially immigration enforcement by the honor system” — a statement that found its way into both the complaint in Florida and a separate decision by Judge Wetherell in a later companion case, Florida v. Mayorkas (Florida II).
In addition, 4 percent of aliens released on Parole+ATD and 3 percent of those released on OR provided no address in the United States when they were released either.
This isn’t simple malpractice — it’s malfeasance that merits a congressional inquiry because, as the DHS IG notes, “ICE does not have sufficient resources to oversee the volume of apprehended migrants” who offered invalid U.S. addresses or no addresses at all when they were released and who subsequently failed to appear.
Dismal Migrant Check-In Rates — Particularly for Parole+ATD. And ICE now has its work cut out for it. It should come as little surprise to find that most of those aliens released without providing addresses in the United States also failed to report to ICE as required, more than 52 percent in a sample of 25,000 migrant releases the DHS IG examined.
Not that providing a valid address ensured that the alien would later appear, either, because DHS IG reports that 33 percent of all aliens released on Parole+ATD between March 2021 and August 2022 — nearly 101,000 aliens in total — failed to check in as they were required to do to pick up their NTAs, as did 10 percent of those released with NTRs (7,000-plus aliens) during that period.
Biden’s DHS Doesn’t Care. If this sounds like DHS under the Biden administration doesn’t care about national sovereignty or border security, you’re right. The administration’s expressed focus at the border is on getting illegal migrants into the United States as quickly as possible in the hope that they will turn themselves into DHS yet again, this time to seek asylum. If you want proof, just look at how it treated the DHS IG’s proposed fixes.
There are four recommendations at the end of that report, all of which would require CBP and/or ICE to properly verify addresses and keep track of aliens who don’t have one (or don’t offer it), and to track the problem generally. DHS “non-concurred” with all of them, citing either no need to do anything differently, a lack of resources or agency accountability, or in-house fixes that won’t really fix anything.
Whether you realize it or not, the Biden administration is playing a game with its release policies at the Southwest border, one that exclusively benefits foreign nationals who have no right to be in the United States to the detriment of the safety and security of the citizens and lawful aliens who do. It’s all now “immigration on the honor system”, but there’s little honorable about it.
