ICE has been releasing illegal immigrants, including those with criminal records, from custody to clear space for the looming surge of new migrants at the border, in the latest sign of the government’s scramble to try to prepare.
U.S. Immigration and Customs Enforcement cut its detention population to fewer than 23,000 people at the start of this month, down from more than 28,000 just six weeks earlier. That includes hundreds of people with criminal records whom ICE has released.
Acting ICE Director Tae Johnson had told Congress last month that he wanted to cut the population down to as low as 21,000 people to leave plenty of space to accommodate the border chaos as the administration gives up its Title 42 pandemic expulsion power.
Mr. Johnson had said he would try to release mostly non-criminals but said some criminals could be put back on the streets to make room. He said any criminals that were released would be “very low-level criminals.”
ICE didn’t respond Tuesday to a request for comment, but in data published in late April it said it had already released more than 800 immigrants with criminal convictions that month, on top of 1,410 in March. The majority of those were discretionary releases.
That’s just one of the ways Homeland Security is confronting the new surge of illegal immigrants and the conundrum of where to put them all.
States and cities across the country say they’re already overwhelmed with the migrants that have arrived in the last two years.
New York City has said it will start pushing folks out to the hinterlands to try to reduce its burden. Those hinterlands say they can’t take them. Texas has turned its National Guard into a type of state-run border patrol to try to deter new arrivals, and Gov. Greg Abbott promised more busing to send migrants to places like New York City.
The feds, meanwhile, aren’t in any better shape.
Customs and Border Protection, ICE’s sister enforcement agency which holds migrants at the border for short-term stays, reportedly had 27,000 people in custody on Tuesday. Fox News’s Bill Melugin reported that the Border Patrol has been ordered to release migrants directly into border communities if they can’t find space to take them.
And the numbers are only increasing.
Over the weekend the Border Patrol reported apprehending nearly 9,000 illegal immigrants a day, even before Thursday’s end of Title 42. Just a couple of weeks ago the total was 5,000 a day.
White House press secretary Karine Jean-Pierre on Tuesday blamed Congress, which she said hasn’t given the administration enough tools.
She said they’ll have to work with what they have.
“Right now, we believe we have a robust plan, a multi-agency plan to do this in a humane way,” she said.
Homeland Security Secretary Alejandro Mayorkas said that in the absence of Title 42, his department will harness regular immigration law to try to deter illegal immigration — most notably “expedited removal,” a speedy deportation process. Mr. Mayorkas said that can oust someone “in a matter of days or just a few weeks.”
“Those who arrive at our border and do not have a legal basis to stay will have made the journey often having suffered horrific trauma and having paid their life savings to the smugglers only to be quickly removed,” he told reporters in laying out his plans last month.
Expedited removal also brings lasting consequences, since unlike a Title 42 expulsion it counts as a formal deportation. Someone reentering after removal can be charged with a felony.
But expedited removal generally takes longer than an expulsion, and it can require significant cooperation from home governments — cooperation that some adversary nations refuse to give.
The result is that for many nationalities, expedited removal is anything but expedited.
Sen. James Lankford, Oklahoma Republican, obtained data last year showing that just 7% of migrants put into expedited removal in 2022 had been deported. Under President Obama, the rate was roughly 10 times higher.
“Under the Biden administration, Expedited Removals is nothing more than a misleading phrase,” he told The Washington Times in a statement. “Few migrants are removed and even fewer are expedited. The current use of Expedited Removals as a substitute for Title 42 will sound tough, but it will actually do nothing to make our country safer since only seven percent of those processed for Expedited Removals are removed from the US at all.”
Mexico, in addition to taking back its own citizen deportees, had agreed to accept up to 30,000 other migrants per month from among the flow of people that jumped the border into the U.S. Mr. Mayorkas said he expects that cooperation to continue after the end of Title 42.
Roughly a quarter of the migrants arriving are unaccompanied children or parents and children traveling together as families. Under Biden administration policy, most of them are caught and released automatically.
That still leaves a sizable number of single adults who can’t be returned to Mexico and who can’t be quickly deported, and ICE’s newly freed space will quickly run out.
ICE is funded for 34,000 detention beds on any given day, though it says ongoing COVID restrictions mean a couple thousand of them can’t be used. That means that with the recent releases, the agency has roughly 10,000 beds open that can be used — or enough to hold a day’s worth of the border surge.
The last time ICE posted public data last month there were 24,944 people in custody, all of them single adults. Of those, 10,790 had known criminal records and the rest were deemed rank-and-file immigration law violators.
Part of the problem, though, is that the U.S. often doesn’t know what criminal records the migrants have in their homes.
“We don’t have access to many of those countries’ records,” Mr. Johnson told Congress last month.
Of the people in ICE custody, roughly half were being held for expedited removal.
Some analysts argue that Mr. Biden has other tools he’s refusing to use.
Matt O’Brien, a former immigration judge and now director of investigations at the Immigration Reform Law Institute, said the Supreme Court’s ruling on then-President Trump’s travel ban on some largely Muslim countries made clear that a president has broad powers to block entire classes of migrants, as long as there’s a good justification.
Mr. O’Brien said an overwhelmed immigration system would qualify as a good reason.
“There are all kinds of things that can be done in order to deal with this instead of Title 42,” he said. “There’s more than ample authority in the Immigration and Nationality Act.”
Chief among those is Section 1182(f) of the INA, which says a president can “suspend the entry of all aliens of any class of aliens” whenever he finds it would be “detrimental to the interests of the United States.”
The Supreme Court, in its 2018 ruling on Mr. Trump’s travel ban, said that section of law “exudes deference” to the president.
Rep. Tom Tiffany, Wisconsin Republican, fired off a letter this week to Mr. Biden urging him to flex those powers to deal with the looming surge.
“Given the unprecedented chaos that has characterized the state of our border for the last two years of your presidency — and the undeniable detriment your open-borders policies have visited on American families, communities and taxpayers — it is long past time that you exercised this authority,” Mr. Tiffany wrote in his letter.
