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Anatomy of Biden’s catch and release catastrophe

Migrants crowd a Border Patrol facility
Rep. Henry Cuellar (D-Texas)

At a press conference that took place before he started his presidency, Biden said he would not be able to roll back Trump’s restrictive asylum policies right away. He said it would likely take six months. “The last thing we need is to say we’re going to stop immediately … and then end up with 2 million people on our border.”

Nevertheless, Biden reversed other key Trump policies on Jan. 20, 2021, a few hours after taking the oath of office. For instance, he —

  • Halted construction of the border wall;
  • Ended Trump’s travel ban;
  • Revoked Trump’s executive order directing his administration “to employ all lawful means to enforce the immigration laws of the United States;” and
  • Biden’s acting DHS secretary issued interim enforcement guidelines that limited enforcement actions to deportable aliens who pose a threat to national security, public safety, or border security.

The interim enforcement guidelines reined in ICE enforcement so severely that its 6,000 immigration enforcement officers were averaging only one arrest every two months as of the end of May 2021. 

And the arrest rate hasn’t changed much since then. ICE arrested and booked into detention 4,281 aliens during September 2021, which raised the average number of arrests per agent — with detention — to one every month and a half.

An illegal crosser who succeeds in reaching the interior of the country is home free. It is extremely unlikely that he will be arrested by ICE unless he is convicted of a serious crime in the United States.

This encourages illegal crossers to keep trying until they succeed.

Moreover, their safe haven in the interior of the country was reinforced by the final version of the enforcement guidelines, which reins ICE in even more by requiring a case-by-case evaluation of various positive and negative factors before deciding whether to take an enforcement action. 

Flood of illegal crossers

The border patrol apprehended more than 1.3 million illegal crossers in the first eight months of the Biden administration. This brought apprehensions for fiscal 2021, up to more than 1.6 million, which is the highest number of illegal crossings recorded in any fiscal year since the government began tracking such entries in 1960.

These figures do not include migrants who successfully avoided apprehension after making an illegal entry that was detected by CBP sensors, videos cameras, or agents. The border patrol refers to such entries as “got aways.” Got aways have been averaging more than 1,000 a day in recent months.

No one knows how many migrants succeed in making an illegal entry without being detected.

In the midst of a deadly pandemic 

Although I don’t know how they were infected, the fact that 11,920 CBP employees have tested positive for COVID-19 as of Oct. 21, 2021, indicates that COVID is a problem at the border.

DHS doesn’t test illegal crossers for COVID-19 upon their arrival. COVID testing is postponed until they are released to local community groups, cities, or counties. And they usually spend days confined in tight spaces with scores of strangers.

In the Spring, about 5 percent of the single adults and families who were tested after being released tested positive for COVID-19. The rate was around 12 percent for the unaccompanied minors.

Migrants who test positive are transferred to a shelter operated by the city they are in. The rest spend a night or two at a respite center and then take planes or buses to their destinations inside the United States.

Catch and release

Florida State Attorney General Ashley Moody recently filed a lawsuit to stop the administration’s catch and release policy, which she alleges has resulted in the release of at least 225,000 illegal crossers.

She alleges that this violates the mandatory detention provisions in sections 1225(b)(1) and (2) of the Immigration and Nationality Act (INA) which require DHS to detain all arriving aliens pending a decision as to whether they have a valid basis for entering the United States.

She also alleges that the administration is violating section 1182(d)(5)(A) of the INA by granting parole to authorize the admission of undocumented migrants without complying with the requirements of that provision, which specify that parole may be used “only on a case-by-case basis” and only for “urgent humanitarian reasons or significant public benefit.”

She asked the court to hold unlawful and set aside the administration’s policy of releasing arriving aliens in violation of these statutory requirements.

According to the New York Post, planeloads of undocumented migrant children are being flown secretly into suburban New York. The public has no way of knowing how common this practice is.

Buses leaving McAllen, Texas, are struggling to provide transportation for illegal crossers released by overwhelmed border patrol agents. The agents process them and then send them to a government-run COVID test site. After being tested, they stay at a Catholic Charities center while arrangements are made for them to travel further into the United states.

The center accommodates about 7,000 people a week. Usually, half leave — for destinations elsewhere within the United States — by bus and the rest by airplane.

Backlog crisis

The immigration court backlog has increased every year since fiscal 2008, when it was only 186,108 cases. As of the end of fiscal 2021, there were more than 1.4 million cases in the backlog, and the average wait for a hearing was more than three years.

It is unrealistic to expect the government to keep track of where released aliens are for that many years, which could make it impossible to notify them when a hearing has been scheduled for them.

Consequently, aliens being released now probably won’t get an asylum hearing unless the administration puts them ahead of immigrants who are in line for a hearing already, many of whom have already been waiting for years.

At some point, the situation at the border will get so bad that the administration won’t be able to deny that it is a crisis. But by then, it could be too late to end the crisis with politically acceptable measures.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at

Tags biden administration Biden immigration policy Border crisis border surge catch and release COVID-19 Department of Homeland Security Illegal immigration Joe Biden

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