Immigration and Customs Enforcement has been releasing illegal immigrants, including those with criminal records, from custody to clear space for the looming surge of more migrants at the border, in the latest sign of the government’s scramble to prepare for the onslaught.
ICE cut its detention population to fewer than 23,000 at the start of the month, down from more than 28,000 six weeks earlier. That includes hundreds of people with criminal records whom ICE has released.
Acting ICE Director Tae Johnson told Congress last month that he wanted to cut the population to as few 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 Thursday night.
Mr. Johnson said he would try to release mostly non-criminals but some criminals could be put back on the streets to make room. He said any criminals released would be “very low-level criminals.”
ICE didn’t respond Tuesday to a request for comment, but it said in data published in late April that it had released more than 800 immigrants with criminal convictions last month on top of 1,410 in March. Most of those were discretionary releases.
That’s just one of the ways the Department of Homeland Security is confronting the coming surge of illegal immigrants and the conundrum of where to put them all.
SEE ALSO: Biden team promises ‘sweeping’ approach to end of Title 42, looming migrant surge
States and cities across the country say they are already overwhelmed with the migrants who have arrived in the past two years.
New York City has said it will start pushing folks out to the hinterlands 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 deter new arrivals, and Gov. Greg Abbott, a Republican, promised more busing to send migrants to New York City and other places.
The feds, meanwhile, aren’t in any better shape.
Customs and Border Protection, ICE’s sister enforcement agency that holds migrants at the border for short-term stays, reportedly had 27,000 people in custody on Tuesday. Bill Melugin of Fox News reported that the Border Patrol was ordered to release migrants directly into border communities if they can’t find space to take them.
The numbers are only increasing.
Over the weekend, the Border Patrol reported apprehending nearly 9,000 illegal immigrants a day, even before the end of Title 42. A couple of weeks ago, the total was 5,000 a day.
SEE ALSO: Feds finalize rules to block some asylum seekers at border
White House press secretary Karine Jean-Pierre blamed Congress, which she said hasn’t given the administration enough tools.
She said agencies 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. Unlike a Title 42 expulsion, it counts as a formal deportation. Someone reentering after removal can be charged with a felony.
Expedited removal generally takes longer than expulsion and can require significant cooperation from home governments. Some adversarial nations refuse to give that cooperation.
The result is that expedited removal is anything but expedited for many nationalities.
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 U.S. at all.”
In addition to taking back its citizen deportees, Mexico agreed to accept up to 30,000 other migrants per month from the flow of people who 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 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 fill up.
ICE is funded for 34,000 detention beds on any given day, though it says ongoing COVID-19 restrictions mean a couple of thousand of them can’t be used. With the recent releases, the agency has roughly 10,000 beds open — enough to hold a day’s worth of the border surge.
The latest public data from ICE last month showed that 24,944 people, all single adults, were in custody. Of those, 10,790 had known criminal records and the rest were deemed rank-and-file immigration law violators.
Part of the problem is that the U.S. often doesn’t know what criminal records the migrants have in their home countries.
“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 held for expedited removal.
Some analysts argue that Mr. Biden is refusing to use other tools he has.
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 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 is 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.”
In its 2018 ruling on Mr. Trump’s travel ban, the Supreme Court said that section of law “exudes deference” to the president.
Rep. Thomas Tiffany, Wisconsin Republican, fired off a letter this week urging Mr. Biden 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.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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