Situation at the southern border worse that you probably realize

Polls indicate that voters have been turning against the Biden administration’s immigration policies. According to the October Harvard CAPS/Harris Poll, only 35 percent of registered voters approve of the administration’s immigration policies.

  • 81 percent think illegal immigration is a serious issue;
  • 65 percent think Biden’s immigration executive orders encourage illegal immigration;
  • 54 percent think he is creating an open border, not just trying to enforce the immigration laws more humanely; and
  • 73 percent think the current surge in undocumented immigrants at the border is a crisis that needs to be addressed immediately.

Is the situation at the border as bad as they think it is?

Yes, it is — and I doubt that most are aware of all of the problems.

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Known or suspected terrorists

At a congressional hearing on March 17, 2021, DHS Secretary Alejandro MayorkasAlejandro MayorkasHillicon Valley —TSA to strengthen rail sector cybersecurity TSA issues directives to rail sector to strengthen cybersecurity US to restart 'Remain in Mexico' program following court order MORE, acknowledged that suspected terrorists have tried to cross the border every year. He said that DHS’s multi-layered security apparatus has made it possible to identify and prevent them from entering the United States.

That we’ve prevented all from entering seems unlikely. While the Terrorism Screening Database contains the names of more than a million known or suspected terrorists and the State Department’s list of foreign terrorist organizations is quite long as well, the surge in illegal crossings permits terrorists and other types of criminals to hide among hundreds of thousands of illegal crossers who are not criminals. And it’s worth remembering that the number of “got-aways” — crossers seen by border agents but not apprehended — has been as high as 1,000 a day. Add to that an untold number of successful crossers never seen (and thus never counted) by government agents.

Mayorkas tried to shift attention away from this issue by claiming that home-grown terrorists are the problem, not foreign terrorists. Given precedents like the Oklahoma City bombing, the same thing could have been said before the Sept. 11 terrorist attacks. While home-grown terrorism may be a real problem, we cannot let our guard down if we want to avoid another Sept. 11.

‘Home free’ magnet

The Biden administration’s enforcement guidelines severely restrict interior enforcement. ICE is not permitted to arrest undocumented aliens in the interior of the country who are here in violation of our laws — unless they also are in one of the administration’s three priority categories. This means that undocumented aliens who don’t commit any of the designated crimes and aren’t viewed as a threat to national security are home free when they reach the interior of the country.

This policy creates a powerful magnet to illegal immigration, and it encourages illegal crossers to keep trying until they succeed in reaching the interior.

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In fiscal 2021, 27 percent of the border encounters were with undocumented aliens who had been apprehended before.

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 illegal crossings in 1960. And 10,763 of the illegal crossers were convicted criminals.

These figures do not include “got-aways” — migrants who successfully avoided apprehension after making an illegal entry that was detected by CBP sensors, videos cameras, or agents.

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

Immigration court backlog crisis

As of the end of September, the immigration court had a backlog of more than 1.4 million cases, and the administration is not making any progress on reducing that backlog. The immigration courts received 315,491 new cases in fiscal 2021, and only completed 144,654. 

The average wait for a hearing is 934 days. This means that the only way to provide a hearing for asylum seekers who are crossing now without a multi-year wait is to put them ahead of people who have been waiting in line for years already.

Alternatives to detention

The Biden administration is monitoring 136,026 immigrants in ICE’s Intensive Supervision Appearance Program. Despite the name, this program has plenty of opportunities for aliens to abscond, especially now with the 934-day average wait for a hearing. The monitoring is accomplished through various means, including GPS ankle monitors, voluntary check-ins via telephone, and via smartphone app. If they stop reporting in and change location during the years-long wait for a hearing, there’s little chance under current policy that anyone will try to track them down.

Again, home free.

Public health expulsions

To limit the spread of the novel coronavirus that causes COVID-19, the Centers for Disease Control (CDC) has suspended the admission of certain persons from countries where a quarantinable communicable disease exists.

The CDC hasn’t withdrawn that order yet.

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The pandemic hasn’t ended. 

As of Nov. 12, COVID-19 had killed 761,377 people in the United States, 36,601 of whom died in the last 28 days.

The administration has continued to expel migrants under this CDC order, commonly referred to as the Title 42 order, but not as many as the previous administration — and it is expelling fewer now than it did when Biden began his presidency. In September 2021, it expelled 54 percent of the illegal crossers, which is substantially fewer than the 74 percent it expelled in February.

Moreover, those expelled are free to come back and keep trying to cross illegally until they succeed in reaching the interior.

No longer mainly Mexicans

Apparently, news about the administration’s immigration policies has been heard around the world.

While in the past, most illegal crossers came from Mexico, a record number of encounters in fiscal 2021, involved people from countries other than Mexico. The number from Ecuador increased from 11,861 in fiscal 2020, to 95,692 in fiscal 2021. There also were stark increases in encounters with people from Brazil (from 6,946 to 56,735), Nicaragua (from 2,123 to 49,841), Venezuela (from 1,227 to 47,752), Haiti (from 4,395 to 45,532), and Cuba (from 9,822 to 38,139).

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Conclusion

This is the worst border security crisis we have ever had — and it is likely to get even worse unless Biden reverses his immigration policies and starts enforcing our immigration laws.

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 https://nolanrappaport.blogspot.com.