Border Patrol continues to encounter thousands of illegal immigrants at southern border

Thousands of illegal immigrants continue to be encountered by border guards between ports of entry after the expiration of the Title 42 public health order, though the Biden administration is touting its enforcement measures and pointing to a decrease in arrests since the pandemic-era order ended.

An immigration official in the U.S. Department of Homeland Security (DHS) reportedly indicated that encounters dropped from an average of more than 10,000 per day in the days leading up to the end of Title 42 on Thursday, May 11 to an average of 4,400 per day in the days that followed.

On Thursday, the federal government withdrew the public health order under Title 42 of the U.S. Code that allowed the rapid expulsion of foreign nationals who crossed the border illegally. It ended in conjunction with the expiration of the nation’s COVID-19 emergency.

DHS Secretary Alejandro Mayorkas appeared on ABC News and other networks to defend the Biden administration’s handling of a surge of illegal immigration that occurred prior to the Title 42 expiration.

Mayorkas pointed to his department’s deterrence measures, commenting, “Now with a 50 percent drop in the number of encounters at the southern border, we are executing our consequences regime exactly as planned.”

The secretary explained that those who circumvent “lawful pathways” will face a “higher threshold” for an asylum application.

“This is not an asylum ban,” Mayorkas said, characterizing it as a “presumption of ineligibility that can be overcome.”

Those who cross illegally may face a five-year ban on reentry and repeated offenses could result in prosecution.

While some had expected enforcement encounters to spike in the days after Title 42 ended, they peaked in the days preceding the expiration of the order.

Gov. Greg Abbott credited enforcement measures by the State of Texas for preventing a flood of illegal immigration after the expiration of Title 42. However, on the day the order expired, Mayorkas accused Abbott of political gamesmanship for busing noncitizens to other parts of the country.

“It is a both sad and tragic day when a government official uses migrants as a pawn for political purposes,” Mayorkas said.

In a news conference, the secretary foreshadowed the success of DHS’s enforcement policies.

“We have confidence in the approach we are taking, which is really to present lawful pathways for individuals to take advantage of and to disincentivize individuals from really placing their lives in the hands of smugglers,” Mayorkas said.

The secretary called the parole measures announced in early January for illegal immigrants from a handful of Central American countries a “proof point” for the success of those lawful pathways. He also cited the number of expulsions in 2022.

“We removed, returned, and expelled 1.4 million people last year. Ask those 1.4 million people if they think the border is open. Our apprehension rate at the border is consistent with the apprehension rate in prior years thanks to the extraordinary work of the United States Border Patrol,” Mayorkas said.

However, Mayorkas said the Biden administration’s actions are “markedly different” than Trump’s.

Earlier this year, Immigration and Customs Enforcement (ICE) Acting Director Tae Johnson commented on the report that detailed removals by federal authorities in 2022.

“ICE continues to disrupt transnational criminal organizations, remove threats to national security and public safety, uphold the integrity of U.S. immigration laws, and collaborate with its colleagues across government and law enforcement in pursuit of our shared mission to keep U.S. communities safe,” Johnson said.

“ICE’s annual report highlights the efforts of our more than 20,000 law enforcement and support personnel in responding to complex cross-border and domestic threats. We will continue to safeguard national security and public safety while living on our core values: integrity, courage, and excellence.”

ICE had an average of 22,630 people in its custody throughout Fiscal Year 2022, according to the report.

Criminal Law

Illegal immigration is a criminal act under federal law. 8 U.S.C. §1325 prohibits entry or attempted entry “at any time or place other than as designated by immigration officers.” The statute also makes it a crime to “(elude) examination or inspection by immigration officers” or deceive immigration officials in order to gain entry. Those in violation are subject to a fine, up to six months in prison for the first offense, and up to two years in prison for each offense thereafter.

While U.S. law provides criminal penalties for illegal immigration, deportation or removal is a civil proceeding. In fact, during the 2020 presidential primary, many Democratic candidates called on decriminalizing illegal entry altogether. Last year, the Democratic Party of Texas adopted platform language calling on lawmakers to “maintain the independence of local law enforcement” from federal immigration authorities and “restore the long-standing, historical treatment of unauthorized border crossings as a civil matter.”

Customs and Border Protection (CBP) has not yet published its operational update for April. However, in the March report, the agency said there were just over 162,000 encounters with illegal immigrants between ports of entry along the southwestern U.S. border. A quarter of those individuals had been caught at least once already in the preceding 12 months.

In December, with the exception of U.S. Rep. Tony Gonzalez (R-TX-23), the GOP members of the Texas delegation to Congress unveiled a border security plan that would include requiring ICE to pursue deportation in virtually all cases.

Like the Obama administration, the Biden administration uses “prosecutorial discretion” to apply more lax deportation rules. The guidelines, published by Mayorkas, have been the subject of litigation in federal courts initiated by the State of Texas.

A federal judge in Florida recently denied the administration’s request to stay an order requiring it to end the widespread use of parole authority to release illegal immigrants into the interior of the country. Mayorkas told the media he respected the judge’s decision but disagreed with his interpretation of the law.

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