The Border Process
We reached out to the Migration Policy Institute to ask what happens to migrants who arrive at the southern border without authorization to enter the U.S. “The short answer is, it depends,” Putzel-Kavanaugh told us.
We’ll start with migrants apprehended while trying to cross between ports of entry.
In the last several years, Putzel-Kavanaugh said, typically migrants will go into U.S. territory and then wait to be apprehended, with the intention of asking for asylum. They are taken to a processing center – “large, tent-like structures” – for 24 to 72 hours to answer questions and provide biometric information.
“While in custody,” she said, “they’re processed, so to speak … the appropriate disposition will be given to them.” Migrants could be released with a notice to appear in immigration court, processed for expedited removal or asked if they want to be returned to Mexico.
For expedited removal, the U.S. would have to have a relationship with the migrant’s country of origin and space on a repatriation flight. ICE would need capacity to hold migrants pending removal.
In fiscal year 2023, 46% of encounters were migrants from Mexico, Guatemala and Honduras, countries that regularly accept repatriation of their citizens. Venezuelans made up 10.7% of encounters. The U.S. announced in October that Venezuela agreed to accept repatriations of its citizens, but in January, the country halted those flights.
For families, “Border Patrol doesn’t want to keep children in custody for very long,” Putzel-Kavanaugh said. Families are “likely to be released quickly with an NTA [notice to appear] to appear in immigration court.”
What happens for border crossers “depends on the day, depends on how many people Border Patrol is processing” and depends on the type of people coming in, such as whether they are traveling as a family. Criminal record checks are conducted, including screenings for prior immigration charges and whether someone is on a terrorist watchlist.
Glossary of Immigration Enforcement Terms
The process at legal ports of entry is different. Most migrants without authorization to enter the U.S. who are processed at ports of entry have appointments through CBP One — an app that in January 2023 began accepting appointments for a limited number of migrants who are in Mexico and want to request asylum or parole. DHS calls this “safer, humane, and more orderly” than processing between ports of entry, where migrants cross the border illegally and wait to be apprehended. Migrants with CBP One appointments get a similar screening and could be subject to expedited removal, but the majority are released into the U.S. with a notice to appear in immigration court, Putzel-Kavanaugh said.
With CBP One, border officers already have a lot of information about the person, including contact information and a photo. But appointments are capped at 1,450 per day. For calendar year 2023, 413,300 people scheduled such appointments, CBP says.
So, those who are released into the U.S. are generally saying they have a fear of returning to their home countries and want to apply for asylum, and releases are especially likely if it involves a family.
The capacity of Border Patrol and ICE facilities is also an issue, with detention reserved “for people who are really presenting a national security threat,” Putzel-Kavanaugh said.
There’s also a humanitarian parole program for people fleeing Haiti, Venezuela, Nicaragua and Cuba, who can potentially stay in the U.S. for two years if they have a sponsor who applies for the program. Through the end of last year, 327,000 people have been granted parole under the program, which launched in October 2022 for Venezuelans and expanded to the other nationalities in January 2023. There are 30,000 slots per month available.
Unaccompanied children are transferred to the Department of Health and Human Services, which is responsible for children who cross the border on their own.
“It’s this giant puzzle of different agencies … that have to work together,” Putzel-Kavanaugh told us.
For a visualization of the process, the American Immigration Council referred us to a New York Times infographic it helped the newspaper create on what happens to those coming to the border.
Those seeking asylum must prove “that they meet the definition of a refugee,” the American Immigration Council explains in a fact sheet updated in January. “In order to be granted asylum, an individual is required to provide evidence demonstrating either that they have suffered persecution on account of a protected ground in the past, and/or that they have a ‘well-founded fear’ of future persecution in their home country.”
Because of a backlog of cases, asylum seekers can spend years waiting for a court date. As we explained in a story last month, less than 15% of those seeking asylum were ultimately granted it in fiscal years 2022 and 2023, according to Justice Department statistics. But it is taking four to five years for asylum cases to get to court.
The immigration court backlog was 3 million cases in November, a record, according to a December report from TRAC, a nonpartisan research center at Syracuse University.
Border Statistics
As we said, there were 6.5 million encounters at the southern border from February 2021 through October, including a little more than 700,000 migrants who arrived without legal documentation at ports of entry. That’s according to DHS’ Office of Homeland Security Statistics.
About 2.5 million people through October have been released into the U.S. That figure includes 2 million released by Border Patrol, with a notice to appear in court or a notice to report to ICE, or released through prosecutorial discretion or granted parole, which allows people into the country for a temporary period. The 2.5 million number also includes nearly 534,000 paroles processed at legal ports of entry.
In addition to those releases, nearly 367,000 migrants have been transferred to HHS, which is responsible for children who cross the border on their own, unaccompanied by adult family members or legal guardians.
Another 771,000 were transferred to ICE, a figure that includes those subsequently booked into ICE custody, enrolled in “alternatives to detention” (which include technological monitoring and other case management options) or released by ICE.
Of those arriving at the southern border during Biden’s presidency, 2.8 million were removed or returned directly from CBP custody through October, the vast majority of them under the Title 42 public health law during the pandemic. Total DHS repatriations were 3.7 million, which includes removals by ICE.
Under Title 42, the U.S. immediately expelled people encountered at the border, except for unaccompanied children, without giving them an opportunity to apply for asylum — and without imposing criminal penalties. Now that Title 42 has ended, there are fewer expulsions overall, but the number removed from CBP custody under Title 8 has increased. Title 8 laws are the longstanding immigration laws that dictate what can happen to migrants entering illegally and who is inadmissible. Title 8 removals are subject to criminal penalties, including a five-year ban on entering the U.S. again.
In addition to fewer expulsions since the end of Title 42, there is evidence of a decline in the rate and number of gotaways, according to David J. Bier, the associate director of immigration studies at the libertarian Cato Institute. “Since Title 42 was terminated, successful evasions of Border Patrol have declined 79 percent to a daily average of about 500, or 15,500 per month, in January 2024,” Bier wrote, using monthly estimates reported by media outlets.
The gotaway figures can be estimated through observation – such as electronic surveillance of the border – or statistical modeling. “Gotaway data have become more reliable over the past decade because border surveillance has increased dramatically from 2005 to 2023,” Bier wrote.
As we said, some Republicans have claimed that 85% of migrants are being allowed into the country under Biden, citing remarks attributed to DHS Secretary Mayorkas by the Border Patrol Union. (Publicly, Mayorkas said at the time that “the majority of all southwest border migrant encounters throughout this administration have been removed, returned, or expelled.”) But overall under Biden, through October, 35% of those apprehended at the border have been released to await further immigration processing.
Recent Customs and Border Protection figures of those trying to enter the country between ports of entry come close to that 85% number for December, when 77% of the nearly 250,000 apprehensions by Border Patrol were released with a notice to appear in court. But the monthly figures vary. In January, 57% were released with a notice to appear. From June, the first full month after Title 42 ended, through January, 64% of Border Patrol apprehensions were released.
Again, these initial dispositions don’t indicate what ultimately happens.
DHS also publishes lifecycle reports on what happens to migrants over time — since asylum cases and deportation proceedings can take years. The most recent report is for fiscal 2021, which covers less than a year of Biden’s time in office. The latest report shows that cases can be pending for quite some time. It says that 28% of all border encounters from fiscal 2013 to 2021 were still being processed.
Bier calculated release and removal rates for the last two years of former President Donald Trump’s term and the first 26 months of Biden’s, using DHS data, including the lifecycle report, ICE detention statistics and other figures published by the Republican majority on the House Judiciary Committee. Bier wrote in November that his work showed the Biden administration “has removed a higher percentage of arrested border crossers in its first two years than the Trump DHS did over its last two years. Moreover, migrants were more likely to be released after a border arrest under President Trump than under President Biden.”
While the raw numbers are much higher under Biden — 5 million encounters compared with 1.4 million under Trump in those time frames — the percentages for the two administrations were similar: 47% removed under Trump and 51% under Biden. Bier’s estimates are for illegal immigration between ports of entry. (As our bar graph above shows, both administrations had removal rates above 50% when Title 42 was being used to expel people.)
“These numbers highlight how difficult it was even for the most determined administration in US history to expel everyone who enters illegally,” Bier wrote.
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