How Alejandro Mayorkas is shielding almost a million deportable immigrants from removal

House Homeland Security Chairman Mark Green (R-Tenn.) recently issued a fact sheet on what he claims to be Department of Homeland Security Secretary Alejandro Mayorkas’s “shell game” attempt to hide a startling crisis at the southwest border.

Migrants without visas or other entry documents can install the CBP One app on their mobile phones and use it to schedule an appointment to present themselves at specified southwest border ports of entry. A recent media report shows that 99 percent of the migrants who had these appointments were exempted from Title 42 expulsion and released into the U.S. interior.

CBP has increased the number of CBP One admissions to 1,450 a day.

This shifts the release of undocumented migrants to ports of entry to make it appear that “illegal” crossings are decreasing. “It’s clear the Biden administration’s approach to ‘border management’ is to identify more expeditious ways to process illegal aliens and release them into the interior of the United States,” said Green.

Illegal entries aren’t the only problem. Mayorkas has prohibited enforcement measures against migrants who use nonimmigrant visitor’s visas to enter the United States lawfully and don’t leave when the period authorized for their visit has expired.

According to DHS’s Fiscal Year 2022 Entry/Exit Overstay Report, 23,243,127 nonimmigrant visitors who entered the United States lawfully at air or seaports of entry were expected to depart in fiscal 2022, and all but 3.674 percent left as required by their visitor’s visas.

That seems like a small percentage, but 3.674 percent of 23,243,127 is 853,955 people. This means that the overstays increased the population of undocumented immigrants in the U.S. by almost a million in a single fiscal year.

And there were more than 853,955 overstays in fiscal 2022. The overstay report does not include overstays who entered the United States at a land port of entry. The actual increase in the population of undocumented immigrants may therefore be much larger than a million.

Mayorkas’s Guidelines for the Enforcement of Civil Immigration Law shields deportable overstays from being subjected to enforcement proceedings.

According to Mayorkas, most of the deportable immigrants in the U.S. have been contributing members of their communities for years. “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.”

He focuses enforcement efforts instead on deportable immigrants who pose a threat to national security, public safety or border security. A deportable immigrant may be considered a threat to national security if he or she has engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security.

A deportable immigrant may be considered a threat to public safety if he or she poses a current threat to public safety, typically because of serious criminal conduct. This determination requires an assessment of the individual and the totality of pertinent facts and circumstances. There may be aggravating factors that militate in favor of initiating an enforcement action. Conversely, there may be factors that militate in favor of declining the initiation of an enforcement action.

Neither of these categories applies to overstays, according to the guidance. And the one for border security doesn’t either, because overstays entered the U.S. lawfully.

A deportable immigrant is not considered a threat to border security unless he is apprehended at the border or a port of entry while attempting to unlawfully enter the U.S., or he is apprehended in the U.S. after unlawfully entering after Nov. 1, 2020.

Who were the 853,955 overstays who entered the U.S. at air or sea ports of entry in fiscal 2022?

These include five groups. The first comprises the 97,632 nonimmigrant visitor overstays for business or pleasure from Visa Waiver Program (VWP) countries. Then there are 504,636 nonimmigrant visitor overstays. Third are 55,023 nonimmigrant overstays among student and exchange visitors. Next come the 45,417 nonimmigrant overstays (excluding those from Canada and Mexico). Finally, there are 151,247 nonimmigrant overstays from Canada and Mexico.

The fact that nonimmigrant visitors are not being put in removal proceedings has only become a magnet for more illegal immigration. 

According to border security expert Todd Bensman, migrants hear about the Biden administration’s lax enforcement policies “from friends, relatives, neighbors, and acquaintances who communicate their good fortune by cellphone calls, texts, chat room discussions, and selfies.”

Lastly, the recent Supreme Court decision on standing to challenge the Mayorkas enforcement guidelines makes it unrealistic to expect federal court intervention. Realistically, if Congress doesn’t make Mayorkas follow the statutory border security and removal provisions in the Immigration and Nationality Act, then no one will.

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. Prior to that, he wrote decisions for the Board of Immigration Appeals for 20 years.