The record number of immigrants released from the southern border into the interior of the United States on President Joe Biden's watch have little chance of removal, immigration policy experts told the Washington Examiner.
An estimated 2 million immigrants are awaiting future immigration court dates since Biden took office, and the likelihood that U.S. Immigration and Customs Enforcement officers will remove them is virtually nonexistent, experts on various sides of the issue said.
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"Given existing staffing constraints and the redirection of ICE resources to the southern border, it’s highly unlikely that the agency will be able to keep up with removal orders now or ahead without the allocation of major new resources for interior enforcement," said Colleen Putzel-Kavanaugh, Migration Policy Institute's research assistant, in an email.
A fellow at the conservative Center for Immigration Studies agreed with Putzel-Kavanaugh's assessment.
"Those aliens are here indefinitely, if not forever," said Andrew "Art" Arthur, a former immigration judge and a resident fellow in law and policy at CIS.
David Bier, the associate director of immigration studies at Washington-based libertarian think tank Cato Institute, added, "In general, it’s quite unlikely that someone released at the border would be put on an ICE plane and flown out of the country, though a very substantial number of those ordered removed do leave voluntarily after some time."
Homeland Security Secretary Alejandro Mayorkas has vowed repeatedly to deport those approved for deportation.
Of 11 million illegal immigrants residing in the country, 1.9 million have been given a final order of removal by a federal judge but remain in the country, according to the American Immigration Council. It's for this reason that immigration policy experts from various backgrounds view Mayorkas's claim as unrealistic.
Being released from government custody into the interior of the country is not the end of the immigration process but the beginning of a lengthy legal process to determine whether the government has the right to remove that person — a process that can take five to 10 years more years to navigate.
Up and down the nearly 2,000-mile-long U.S.-Mexico border, 5 million people have been encountered attempting to cross without documents since February 2021, days after Biden took office.
While many can be placed in expedited removal proceedings, others have not been placed in this fast return process.
The Biden administration has espoused its unwillingness to detain people through proceedings, as have previous administrations, albeit to smaller extents.
The majority of the 2 million people that the Biden administration chose to release into the U.S. were discharged under a process informally known as “catch and release.”
Immigrants who illegally cross and are apprehended by Border Patrol agents are processed, fingerprinted, and checked against U.S. criminal databases.
Those who are released are either let into the community by Border Patrol or physically transferred to ICE and then released. Requesting asylum is not a requirement for release.
Some are placed in court proceedings, meaning immigration courts know to expect that person to show up to a specific court on a certain day.
At the time of discharge, immigrants are to be served with papers of a notice to appear in court at a future date. The Department of Homeland Security files that charging document with one of the immigration courts and schedules an initial appearance in which the judge will outline the process, how the individual violated immigration law, the defendant’s ability to obtain a lawyer, and consequences for failing to show in court.
An ICE-appointed lawyer will make the government’s case for removing the person, while the immigrant can request protection from removal, including by seeking asylum. A separate hearing for protection from removal must be set up, lengthening the process.
"Once someone is processed and released into the U.S. interior, they have one year to apply for asylum, so the current numbers available are not necessarily an indicator of recent arrivals applying for asylum," Putzel-Kavanaugh said.
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A total of 445,000 asylum applications were submitted in fiscal 2022, which includes people who did not cross the southern border but entered through other means.
Once an immigration judge determines someone meets the criteria for deportation, ICE is supposed to take action within 90 days — but the backlog persists.