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May
19
2023

Southwest Border Apprehensions, Encounters Surge in April
Andrew R. Arthur

Policies have consequences

CBP has released its statistics on Border Patrol apprehensions and CBP overall encounters at the Southwest border for the month of April and, not surprisingly, both surged last month even while Title 42 expulsions dropped. That does not bode well for the administration with Title 42 having some ended on May 11 just as “travel season” at the U.S.-Mexico line gears up. Expect some drop-off in apprehensions when the May numbers come out next month as illegal migrants — and more importantly their smugglers — are still trying to figure out all the loopholes in Biden’s latest border regime. 

Border Patrol Apprehensions. In April, Border Patrol agents at the Southwest border apprehended more than 182,000 illegal migrants — by my counting making last month’s apprehension total the 15th highest in history (records go back to October 1999), and the 12th highest in the 27 full and dismal (from a border security perspective) months of the Biden administration.

It’s also a 12 percent increase in apprehensions over March, and a 40 percent increase over February — the month Biden lauded his immigration efforts at the State of the Union address.

So much for that, and for White House Press Secretary Karine Jean-Pierre’s recent contention that “when it comes to illegal migration, you’ve seen it come down by more than 90 percent, and that’s because of … the actions that this President has taken”. The apprehension total is what it is because of “actions that this President has taken”, but not in the way she likely meant.

To explain, let me reference federal district court Judge T. Kent Wetherell II, who in his March 8 opinion in Florida v. U.S. explained that Biden’s Southwest border migrant release polices:

…were akin to posting a flashing “Come In, We’re Open” sign on the southern border. The unprecedented “surge” of aliens that started arriving at the Southwest Border almost immediately after President Biden took office and that has continued unabated over the past two years was a predictable consequence of these actions. Indeed, [Border Patrol Chief Raul] Ortiz credibly testified based on his experience that there have been increases in migration “when there are no consequences” and migrant populations believe they will be released into the country.

I’m not saying violence, poverty, crime, corruption, and insecurity abroad haven’t all played a role in the migrant surge under Biden, and for what it’s worth, Judge Wetherell wouldn’t say that either. Those are all intractable issues, however, which were at least as — if not more — significant before Biden took office than they are now.

Rather, millions of would-be migrants “looking for a better life” — regardless of what “better” means in any given context — saw that the Biden administration was offering them an opening to resettle in this country indefinitely (if not forever) and took it.

And, as the April apprehension numbers reveal, they continue to take it.

They were likely further enticed by the fact that Border Patrol apparently began ramping down Title 42 expulsions in April even before the CDC orders that guided that policy expired.

Fewer than 72,000 apprehended migrants were expelled under Title 42 last month, 39.4 percent of the total. That compares — unfavorably — to March, when more than 89,000 illegal entrants (55 percent of that month’s total) were expelled.

If you look just at the number of aliens who were processed under the Immigration and Nationality Act (“INA”, which the administration insists on referring to as “Title 8”, likely to snooker the unwary), last month was the sixth-highest total under the Biden administration. Again, that’s nothing to be happy about.

Most, if not the vast majority, of those illegal migrants will be released into the United States. If Border Patrol doesn’t release them directly from its custody, they will be sent to ICE, where nearly all will be released by that agency. Not that I am blaming either CBP or ICE — the Biden administration is asking Congress to cut detention funding, even as the border remains out of control.

Which goes to Chief Ortiz’s point as referenced by Judge Wetherell above. Detention is the most significant “consequence” of illegal entry because migrants know that if they are not released into the United States, they won’t be able to work and recoup the thousands of dollars that they paid their smugglers — making it less likely they will start the illegal trek here to begin with.

And, even more significantly, detention’s a consequence that Congress requires DHS to employ in the case of every illegal migrant — detention from the point of apprehension until the alien is either granted some form of “relief” from removal (usually asylum) or removed. Not that the Biden administration cares.

CBP Encounters. CBP encounters are the total of Border Patrol apprehensions and aliens deemed inadmissible at the ports of entry by CBP officers in the agency’s Office of Field Operations (OFO).

In April, CBP officers and agents encountered more than 211,000 aliens at the Southwest border, the eighth-highest monthly total under the Biden administration.

For what it’s worth, it’s also the eighth-highest monthly total for Southwest border encounters in the last 11 years, and probably in history — I’d be more dispositive except records for total encounters only go back to October 2011.

In my three decades of immigration experience, however, there have never been anywhere near as many aliens deemed inadmissible at the Southwest border ports as there have been under Biden.

Which brings me to the more than 29,000 aliens who were deemed inadmissible at the Southwest border ports by OFO last month. That’s the fourth-highest monthly total under Biden, and again the fourth-highest monthly total since October 2011. Therein hangs a tale.

As I have explained, the administration’s latest scheme to hide the ramifications of its border policies is to funnel would-be illegal migrants through the ports of entry by allowing them to schedule “interviews” with CBP officers using the CBP One app (which was originally designed to expedite lawful travel).

Recent reports have indicated that more than 99 percent of all the migrants who have received such interviews have been allowed to enter the United States — despite that fact, again, that (1) those migrants are inadmissible to the United States and (2) should therefore, by law, be detained.

The White House claimed in January that the CBP One app port appointment process would only start “when Title 42 eventually lifts”, but my colleague Todd Bensman revealed this scheme back in November. If you’re wondering why seven of the eight highest months for CBP encounters in the past 11 years at the Southwest border ports have been the last seven, look no further.

Looking Forward. Looking forward, keep an eye on the CBP OFO port encounter numbers, and expect them to jump to even higher levels. Some state attorney general will likely catch onto the CBP One app appointment and release scheme and sue to block it, but until then the administration will take what it can get.

That said, don’t be surprised if monthly Border Patrol apprehension numbers either remain steady or decline slightly in May. The end of Title 42 has brought with it a great deal of uncertainty, and until the migrants — and the smugglers — figure out all the loopholes around Biden’s latest border regime, illegal entrants will be leery.

Absent some major change of heart — or some court really laying down the law (“Title 8” or “the INA”, whichever you prefer) — the Biden administration will continue its Southwest border non-detention policies, simply under some new guise.

In April, Border Patrol apprehensions were up, and CBP encounters overall were up, at the Southwest border. For now, President Biden and his press secretary will need to get some new talking points about the great work the administration is doing, or simply expect a credulous media to swallow what they are given from the White House podium.

Andrew “Art” Arthur serves as Resident Fellow in Law and Policy for the Center for Immigration Studies, a Washington, DC-based research institute that examines the impact of immigration on American society.

He began his legal career through the Attorney General’s Honors Program as a clerk to Administrative Law Judge Joseph E. McGuire in the Office of the Chief Administrative Hearing Officer at the United States Department of Justice, Executive Office for Immigration Review. After a two-year clerkship with Judge McGuire, he received a second Honors Program appointment as a Trial Attorney in the San Francisco District Counsel’s Office, and later the Baltimore District Counsel’s Office, of the former Immigration and Naturalization Service (INS).

In 1999, he was promoted to the INS’s General Counsel’s Office in Washington DC, first as an Associate General Counsel, and later as an Assistant General Counsel and Acting Chief of the INS National Security Law Division. In the General Counsel’s Office, Mr. Arthur supervised attorneys handling cases involving espionage, terrorism, and persecutors. He also advised the Attorney General, Deputy Attorney General, and INS Commissioner on issues relating to national security.

In July 2001, Mr. Arthur left the INS to become a Counsel on the House Judiciary Committee, where he performed oversight of immigration issues. After five years at House Judiciary, he was appointed to the immigration bench, serving for eight years as an Immigration Judge at the York Immigration Court in York, Pennsylvania.

At the beginning of the 114th Congress, Judge Arthur left the bench and came back to Capitol Hill, where he served as Staff Director of the National Security Subcommittee at House Oversight and Government Reform before taking retirement from federal service in September 2016.

He is a graduate of the University of Virginia (BA 1988), and of the George Washington University School of Law (JD 1992).

 

 

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