Concurrent with the Office of Inspector General’s (OIG) 2021 unannounced inspections of U.S. Customs and Border Protection’s (CBP) holding facilities, the watchdog also looked at how four Border Patrol sectors on the Southwest border determine post-apprehension outcomes for noncitizens encountered between ports of entry.
CBP’s Border Patrol detects and apprehends individuals suspected of illegally entering the United States between ports of entry. Border Patrol must place apprehended migrants in administrative or criminal immigration proceedings or expel those covered by the Center for Disease Control and Prevention’s (CDC) order pursuant to Title 42.
CBP has experienced irregular migration and high encounter numbers during the last three fiscal years, with the exception of FY 2020, when the COVID-19 pandemic started. Total encounters with migrant unaccompanied children, family units, and single adults were high in FY 2021 and have continued to trend upward in FY 2022. Total Southwest border encounters for FY 2022 through April 2022 are 1,216,173 and notably higher than in FY 2021. In the first seven months of FY 2022, migrant encounters increased by 68 percent over the same period in FY 2021.
Border Patrol holding facilities have limits on the number of migrants they can safely hold. These capacity limits plus the 72-hour limit on time in custody are crucial factors in how Border Patrol administers post-apprehension outcomes.
OIG reported that although all Border Patrol sectors on the Southwest border receive the same post-apprehension guidance from headquarters, applying the guidance consistently is a challenge. Sector capabilities, resources, and apprehension trends play a role in how Border Patrol implements the guidance, as does the availability of beds in U.S. Immigration and Customs Enforcement (ICE) facilities.
Inspectors found that guidance changes frequently due to the fluid nature of irregular migration and the complexity of internal and external circumstances. Border Patrol officials told OIG that such frequent changes create confusion among agents and lead to inconsistent application of the guidance.
Following the inspections, OIG concluded that Border Patrol was not sufficiently prepared to meet an anticipated increase in processing and placement burdens when Title 42 expulsions can no longer be applied. Several Border Patrol agents told the watchdog that the order has allowed them to keep migration levels manageable.
Each of the four Border Patrol sectors that OIG reviewed demonstrated a different ability to manage high volumes of migrants. The watchdog found that migrants usually faced administrative and not criminal post-apprehension outcomes, mostly due to capacity limitations and constraints on how long Border Patrol should detain apprehended individuals in facilities. Within the administrative outcomes, in the sample analyzed by OIG, the majority of migrants were not transferred to ICE detention facilities or expelled under Title 42, but rather were processed for outcomes allowing them to be released.
OIG found that high migrant apprehension numbers along the Southwest border have strained capabilities and resources for both Border Patrol sectors and their partner ICE ERO, playing a role in how the guidance is implemented. In addition, external factors such as local prosecutorial guidelines and conditions guiding removals imposed by foreign governments also play a role, often limiting the options for what post-apprehension outcomes Border Patrol can choose.
OIG acknowledged that the challenges it found are not new or easily addressed, and they restrict Border Patrol’s ability to consistently assign outcomes across sectors. It has recommended that Border Patrol develop and implement guidance for its sectors to address the expiration of the order pursuant to Title 42, as well as develop and implement contingency plans for increased apprehensions and processing.
CBP agreed with both recommendations and noted that it has given guidance to the field with instructions for processing migrants, both currently as well as when CDC’s order prohibiting entry under Title 42 is rescinded. Once Title 42 is rescinded, Border Patrol will resume processing high levels of migrants using established pathways under Title 8 of the Code of Federal Regulations. In addition, CBP said it has initiated numerous actions to address the need for contingency plans, including finalizing a specific Concept of Operations report that allows Border Patrol to continue to plan for increased apprehensions and processing of migrants. The report was designed to increase Border Patrol’s enforcement posture, prioritize threats to border security, and ensure humane treatment of undocumented non-citizens.