‘Crisis’ on Martha’s Vineyard doesn’t hold a candle to what’s coming

Massachusetts Gov. Charlie Baker called in the National Guard to deal with the “humanitarian crisis” that locals claim was set off by 50 migrants being flown to Martha’s Vineyard by Florida Gov. Ron DeSantis. The soldiers assisted in moving the migrants to Joint Base Cape Cod, a military base.

Was this really a crisis? I don’t think so.

For starters, the U.S. Government has released more than 1 million migrants — 20,000 times the number at Martha’s Vineyard — into the U.S. since Joe Biden took office; the burden has fallen primarily upon states near the southern border, some of which are suing the Biden administration.

Admittedly, that’s an argument of scale, comparing the relative burdens of southern states and an island for the well-to-do off the coast of Massachusetts; for the individual migrants — regardless their location — there are certainly elements of crisis; yet again, those hardships likely pale in comparison to the ones in their home countries from which they fled or the ones experienced on their journey north.

But there is a real crisis in the works.

The DHS Inspector General (IG) revealed a situation that should make everyone pause in a report released on Sept. 13, an audit of the post-apprehension outcomes for illegal border crossers at four Southwest Border Patrol sectors. 

What’s happening

Other than migrants who are expelled under the Title 42 order, the administration is only denying entry to a very small percentage of the illegal crossers apprehended at the Southwest border. The rest are being released into the country after a 72-hour screening at overcrowded Border Patrol holding facilities.

And the Title 42 order is going to be terminated — probably after the upcoming midterm elections. President Joe Biden said during a 60 Minutes interview several days ago that, “The pandemic is over.”

So, what’s the crisis? According to the Inspector General: 

The Border Patrol encountered more than 1.6 million illegal crossers in fiscal 2021, and Border Patrol statistics indicate that it has encountered more than 1.9 million illegal crossers so far in fiscal 2022. The Border Patrol’s holding facilities have limits on the number of migrants they can hold safely, and there is a 72-hour limit on how long they can keep migrants in those facilities.   

Moreover, the IG revealed in a subsequent report released on Sept. 19, that “CBP has not issued a formal policy detailing how to expedite the processing of migrants as apprehension numbers continue to rise.”

All four sectors the IG examined were exceeding capacity limits when the IG inspected them. The Rio Grande Valley sector was 373 percent over capacity; the San Diego sector 141 percent, the Yuma sector 529 percent, and the Del Rio sector 491 percent.

When processing has been completed, the Border Patrol must choose a post-apprehension outcome for each of the migrants. The alternatives include:

• Parole: The Border Patrol may grant parole status to migrants who otherwise would be inadmissible to permit them to enter the United States temporarily;

• Expedited Removal (ER): Migrants who are put in expedited removal proceedings are removed summarily from the United States unless they establish a credible fear of persecution, which entitles them to an opportunity to apply for asylum;

• Voluntary Departure (VD): This permits a migrant to voluntarily depart the United States at his own expense;

• Notice to Report (NR): The migrant is released into the country with instructions to report to an ICE office within 60 days;

• Criminal Prosecution: It is a crime to enter the country illegally. A first offense is punishable by imprisonment for up to six months or a fine, or both. Subsequent offenses are punishable by imprisonment for up to two years or a fine, or both; and

• Title 42 Expulsion. The migrant is summarily expelled to avert the spread of COVID-19 into the United States. 

Bed space is one of the big challenges. The availability of beds at ICE ERO detention facilities plays a major role in deciding which post-apprehension outcomes the Border Patrol can employ.

Detention is mandatory in expedited removal proceedings; consequently, when ICE ERO does not have sufficient bed space to detain migrants in expedited removal proceedings, the Border Patrol must choose an outcome — such as notice to report or parole — that does not require detention. 

According to TRAC Immigration, ICE ERO was detaining only 25,776 migrants on Sept. 10.

Again: The administration is allowing most of the illegal crossers not subject to Title 42 into the country.

Administration makes the situation worse  

At a press briefing on Sept. 15, Press Secretary Karine Jean-Pierre said: 

“[T]here is a process in place to manage migration flows. That includes expelling migrants as required by court order under Title 42, transferring them to ICE custody, or monitoring migrants through the alternatives to detention program as they await further processing.” 

But the administration is not increasing the availability of the bed space needed to transfer migrants to ICE custody. In fact, it intends to cut more than 25 percent of the bed capacity at immigration detention facilities.

Despite the fact that encounters with family units have been rising for some time now, ICE ERO has stopped housing family units at its Family Residential Centers.

The result? The report provides two-week data snapshots for the four sectors that indicate that other than Title 42 expulsions, only a very small percentage of the illegal crossers the Border Patrol apprehends are being removed from the United States: 1 percent at the Rio Grande Valley and the San Diego sectors, 10 percent at the Yuma sector, and 6 percent at the Del Rio sector.

The real crisis

The number of illegal crossers the Border Patrol will have to process and manage is likely to double when the Title 42 order is terminated. Consider the fact that during fiscal 2021, the Border Patrol’s Southwest border encountered more than 1.6 million illegal border crossers, and summarily expelled more than 1 million of them (63 percent) under Title 42.

The IG did not observe any viable plans to prepare the Border Patrol for having to process more than a million additional people once Title 42 ends.

Andrew R. Arthur says that the Biden administration disclosures in the Biden v. Texas case indicate that the Biden administration already has released over 1 million illegal crossers into the country — a population larger than the number of residents in the president’s home state of Delaware.

The solution

Democratic Texas Rep. Henry Cuellar explained what has to be done on “Face the Nation” last week. He said that former president Obama’s DHS Secretary Jeh Johnson did it the right way: “[H]e treated the people with respect. But at the end of the day, he enforced the law, and he returned people.”

The Biden administration isn’t enforcing the immigration laws in the interior of the country either. It is extremely unlikely that illegal crossers who reach the interior of the country will be deported unless they are convicted of a serious crime in the United States. In other words, they are home free.

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://www.blogger.com/blog/posts/2306123393080132994