Biden’s ‘catch and release’ system for illegal border crossers is a failure  

The inspector general (IG) of the Department of Homeland Security recently issued a report finding that the Customs and Border Patrol did not get reliable destination addresses for locating the million illegal border crossers it released into the United States from March 2021 through August 2022. 

The IG makes four recommendations for improving DHS’s system for obtaining and confirming the accuracy of the destination addresses it gets from illegal border crossers. DHS has rejected all of them.   

Would the changes the IG recommended make any difference? The migrants could still give incorrect destination addresses or simply say they don’t know where they will be staying. What’s more, the average wait for a hearing is four years. Will migrants report changes in their address if they move to a new location while they are waiting? 

The Border Patrol released 76 percent of the 1.3 million illegal border crossers it apprehended during the audit period. The release conditions depend primarily on voluntary compliance. 

• More than 430,000 were released with a Notice to Appear (NTA), which they were instructed to file with an immigration court to initiate removal proceedings; 

• Nearly 95,000 were released with a Notice to Report (NTR) to a U.S. Immigration and Customs Enforcement (ICE) office near their intended destination within 60 days of release, which took less time to issue than an NTA; and  

• More than 318,000 were released pursuant to the Parole Plus Alternatives to Detention program. ICE manages this program, which can include electronic devices such as ankle bracelets and smartphones to ensure compliance with release conditions, appearances at court hearings and compliance with final orders of removal.  

ICE must be able to locate these migrants to issue NTAs to those who were released without one.   

Eighty percent (790,090) of the 981,671 recorded addresses were used at least twice; 780 were used more than 20 times. Moreover, the addresses in more than 177,000 migrant records were either missing, invalid or not legitimate residential locations.  

The IG made the following recommendations: 

1. The Border Patrol and ICE should create and implement a plan of action to coordinate requirements and processes when migrants do not have a valid U.S. address for release; 

2. ICE should establish a policy for validating migrant addresses and elevating address concerns, such as recurring or invalid migrant release addresses recorded into Border Patrol and ICE record-keeping systems; 

3. ICE’s Enforcement and Removal Operations office should analyze address data on a recurring basis to identify trends, such as recurring and uninhabitable addresses, and share known address concerns with U.S. Border Patrol; and 

4. ICE should evaluate resources and address results for officers overseeing the addresses.  

I don’t think it is possible to salvage a record-keeping system that relies on cooperation from migrants who want to live in the United States so badly that they risked their lives and incurred significant expenses to come here. 

According to a report from the International Organization for Migration’s Missing Migrants Project, 1,457 fatalities were recorded along migration routes in the Americas in 2022. This included 686 migrant deaths at the United States-Mexico border crossing (105 women, 468 men and 29 children).   

And the danger does not end once the migrants have evaded apprehension by the Border Patrol and traveled into the interior of the country. The Border Patrol discovered 568 Southwest border deaths in fiscal 2021, and no one knows how many deaths were not discovered. 

Migrants who think they are eligible for asylum can be expected to attend their hearings, but migrants without a genuine persecution claim have little, if any, reason to appear at a hearing. In any case, for enforcement purposes, it doesn’t matter whether they appear. The significant question is whether they will leave the United States if an immigration judge denies their asylum requests and doesn’t grant them any other form of relief from deportation.  

The DHS Fiscal Year 2020 Enforcement Lifecycle Report indicates that this is not a realistic expectation.   

The Lifecycle Report provides statistical data on the end-to-end enforcement lifecycle of 2.8 million migrants who were apprehended after making illegal crossings between ports of entry along the Southwest Border from fiscal 2014 through fiscal 2019, and 725,000 migrants who were released into the country after being found inadmissible at Southwest border port of entry.   

Overall, 42 percent of the migrants in this study remained continuously in DHS custody between their initial encounter and a final enforcement outcome (or had no final-outcome but were still in custody as of March 31, 2020). These migrants were repatriated 98 percent of the time, with 0.5 percent receiving relief or other protection from removal and 1.5 percent remaining unresolved as of March 31, 2020.   

In contrast, migrants who were never detained were repatriated only 30 percent of the time. In this group, 15 percent were granted relief, 11 percent were subject to unexecuted removal orders, and 55 percent were unresolved. 

Only 3 percent of the migrants who were detained initially and then released prior to a final enforcement outcome were repatriated. Eighty-five percent of these cases were unresolved, including 18 percent with unexecuted removal orders. 

Frankly, there may not be a good solution to this problem. But continuing to release 76 percent of the illegal crossers the Border Patrol apprehends will only make it worse. 

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 him at: https://nolanrappaport.blogspot.com.