How Was Immigration Enforcement Law Used at the Border in FY2022?

Note: In our border blogs, we only analyze data on encounters by U.S. Border Patrol (USBP) in between ports of entry, not all encounters at the southwest border, which include encounters by the Office of Field Operations (OFO) at Ports of Entry (POEs). Also, “expulsions” is the term used for sending migrants out of the country under Title 42, the CDC public health order, and “apprehensions” is used for all migrants processed under any part of immigration law, whether they ultimately are released into the United States, deported, or otherwise sent abroad.

The number of Title 8 apprehensions at the U.S.-Mexico border nearly doubled from fiscal year 2021 to FY2022, going from about 620,000 apprehensions in FY2021 to a little over 1,150,000 apprehensions in FY2022. Though the use of Title 8 has greatly increased this fiscal year, Title 42, the public health emergency order that allows U.S. Customs and Border Protection (CBP) to expel migrants without processing them under immigration law, was still used about 1,054,000 times in FY2022, seen below in Figure 1. Title 42 remains a centerpiece of the Biden administration’s approach to the border, despite the administration’s attempt to end it in April 2022 which was blocked by a federal judge in May 2022.

Figure 1: Monthly Southwest Title 8 Apprehensions and Title 42 Expulsions (FY2022)

Source: CBP(1)(2)(3)

In this blog, we break down how the Border Patrol used its immigration authorities at the border in FY2022. When the CDC’s Title 42 order eventually comes down, apprehended migrants will again be processed entirely under the immigration authorities of Title 8. CBP tracks the disposition of all migrants processed under immigration law, and those dispositions offer insights into how the Biden administration’s approach has changed at the border this fiscal year, and how the administration might approach the border once Title 42 ends.

Title 42 vs. Title 8

The Biden administration continues to rely heavily on Title 42 to manage the border, though it used the public health order for a smaller percentage of overall encounters at the border in FY2022 than in FY2021. (Figure 2). Title 42 was implemented at the border in March 2020, at the beginning of the coronavirus outbreak. Though the order took effect halfway through FY2020, it was used to expel nearly half of all migrant encounters at the border that year; there were just over 197,000 Title 42 expulsions in FY2020, and about 203,600 Title 8 apprehensions. Use of Title 42 greatly increased in FY2021, accounting for about 63% of all encounters, and decreased again in FY2022, accounting for only 48% of encounters.

Figure 2: Southwest Border Apprehensions vs. Expulsions (FY2020-FY2022)

Source: CBP(1)(2)(3)

Usage of Title 42 increased quickly once it was implemented, as seen below in Figure 3. Border expulsions increased from just under 7,100 in March 2020 to nearly 48,500 in September 2022. Beginning in April 2020, the number of Title 42 expulsions outpaced the number of Title 8 apprehensions and remained the most-used authority at the border until July 2021. Usage of Title 42 and Title 8 authorities has remained more even since July 2021, with Title 42 expulsions declining somewhat at the end of FY2022.

Figure 3: Monthly Southwest Title 8 Apprehensions and Title 42 Expulsions (March 2020 – FY2022)

Source: CBP(1)(2)(3)

Continued reliance on Title 42 to manage the border is a precarious strategy, as the public health order can only remain in effect while there is a declared public health emergency. Many officials anticipate that the public health emergency may end in FY2023, which adds urgency to the question of how the administration plans to utilize Title 8 to manage the border in the coming fiscal year.

Huge Growth in Parole and Alternatives to Detention

Figure 4 represents the outcomes of all migrant encounters at the U.S.-Mexico border between ports of entry in FY2022, with red representing those migrants who eventually were sent out of the country and blue representing migrants who were allowed to stay in the country while their immigration case was decided.

Figure 4: Migrant Encounters and Dispositions (FY2022)

Source: CBP(1)(2)(3)

In May 2022 (just over halfway through the fiscal year), the largest disposition category under immigration law was the Notice to Appear/Own Recognizance category, with close to 200,000 people released into the country under those terms. Individuals in this category are given a notice to appear in immigration court, and sign paperwork committing to appear for scheduled immigration court hearings and then released on their own recognizance. In other words, they are not detained or monitored directly by Immigration and Customs Enforcement (ICE). This category was closely followed by the Warrant of Arrest/Notice to Appear category, with nearly 170,000 individuals. Individuals in this category are placed into immigration detention to await their court proceedings. Though these dispositions continued to be used throughout the rest of the fiscal year, the category that experienced the most growth, and was the most used processing disposition during FY2022, was the Parole + Alternatives to Detention (ATD) category. In May 2022, just over 120,500 people had been placed into an ATD program and released into the country with humanitarian parole by Border Patrol. By the end of FY2022, that number had surpassed 378,000, a nearly 210% increase (Figure 5).

Figure 5: Number of Parole + ATD Dispositions (FY2022)

Source: CBP(1)(2)(3)

The first significant growth in the Parole + ATD category occurred between February 2022 and March 2022, when it went from under 8,600 people to nearly 25,000. Growth in the category increased steadily until May 2022, peaking at around 51,500 enrollments that month, and then dropped slightly between June and August 2022, falling to about 31,100 enrollments. But the next month, in September, program enrollments tripled to about 95,200, far outpacing all other disposition categories, and nearly doubling May’s previous high.

According to a September 2022 GAO report, the growth in the Parole + ATD category was in large part due to the increase in apprehensions at the border and decreased detention capacity in Border Patrol facilities, after a Notice to Report (NTR) process (in effect from March 2021-November 2021) drew complaints from ICE. In March 2021, Border Patrol began processing many family unit members via NTR, which is a document that instructs an individual to report to an ICE office within 60 days. According to the GAO, the NTR process was conceptualized and implemented over the course of a few days by senior Border Patrol headquarters officials with little input from Border Patrol Sectors or ICE Enforcement and Removal Operations (ERO). This led to significant processing challenges at ICE ERO field offices that could not handle the number of arrivals, and concerns among Border Patrol and ERO officials that only a small proportion of family units processed with NTRs were reporting to ICE offices, as these families were not required to specify which field office they planned to report to. Destination addresses were also often incomplete or invalid, meaning that ERO had limited ability to follow up and track the migrant families.

Because of the large number of arrivals, Border Patrol has sought to expedite processing for individuals and lessen the overall time they spend in Border Patrol custody. The paperwork for a Notice to Appear for the individual to be placed in full removal proceedings takes about 2 to 2.5 hours for an agent, while processing an individual for an NTR or into the Parole + ATD category takes about 30 minutes. In response to the challenges encountered with the NTR process, senior Border Patrol and ERO headquarters officials developed and implemented the Parole + ATD process in July and August 2021, and terminated the NTR process in November 2021. The Parole + ATD process contains additional mechanisms to track and monitor family unit members without Notices to Appear and increases the likelihood that family units report to an ERO field office. As the Parole + ATD process was implemented, sectors transitioned from using NTRs to Parole + ATD.

In government data, the growth in the NTR process was reflected in the “Notice to Appear/Order of Recognizance, I-385 – Released” category from FY2021 (an I-385 is a Notice to Report). The category saw significant growth starting in March 2021 when the GAO report says that the NTR process was implemented. Numbers peaked in July 2021, seen below in Figure 6, and then began to decrease as the Parole + ATD category was implemented over the summer. It is important to note that the category is not only made up of NTRs, but much of the growth in the category from March to July 2021 can be attributed to the NTR process described in the GAO report.

Figure 6: Notice to Appear/Order of Recognizance, I-385 – Released (FY2021)

Recent analysis, and the September GAO report, has showed that growth in the ATD category in 2021 was driven by increased enrollment of various nationalities into ICE’s ATD program, with a particular increase in the number of Venezuelans, Nicaraguans, Brazilians, Hondurans, Haitians, Cubans, and Ecuadorians that year. This suggests that the administration may be especially reliant on ATD programs for nationalities that are excluded from Title 42 because neither Mexico nor their home country will accept returns of migrants.

The fiscal-year-end growth of the Parole + ATD category saw a corresponding drop-off in the use of the Notice to Appear/Own Recognizance, Warrant of Arrest/Notice to Appear, and Expedited Removal processing dispositions, seen below in Figure 7.

Figure 7: NTA-OR vs. Parole + ATD vs. Expedited Removal vs. Detention (FY2022)

Source: CBP(1)(2)(3)

Despite slight drop-offs between December 2021 and March 2022, and September 2022, expedited removals have remained relatively stable, averaging about 10,000 removals since April 2021. The number of expedited removals peaked in May 2022 this fiscal year, at about 15,000 removals. The increase in expedited removals between March 2022 and May 2022 was likely in response to the administration’s expectation that Title 42 would be removed in May 2022.

Growth in All Immigration Processing Dispositions in FY2022

The use of all immigration processing dispositions (those not processed under Title 42) increased from FY2021 to FY2022, seen below in Figure 8, though not all processing categories are comparable from year to year—for example, the Parole + ATD category was not used in FY2021.

Figure 8: Comparison of Processing Dispositions from FY2021 to FY2022

Source: CBP(1)(2)(3)

The most significant increase was in the detentions category, despite the Biden administration’s stated desire to decrease the use of detention. About 194,500 people were detained in FY2021, and around 275,500 people were detained in FY2022. The increases in all other categories were smaller, especially in the Voluntary Return and Reinstatement of Prior Order of Removal categories, which have always seen relatively fewer cases. Interestingly, however, the number of Reinstatement of Prior Order of Removal dispositions was higher in FY2020 than in both FY2021 and FY2022. Nearly 29,700 Prior Orders of Removal were reinstated in FY2020, compared to almost 20,000 in FY2021 and about 27,600 in FY2022. The number of processing dispositions in FY2020 was much lower across all other categories, in large part due to the COVID pandemic and the lower number of overall encounters.

The number of migrants enrolled in the controversial “Remain in Mexico,” or Migrant Protection Protocols (MPP) program was actually higher in FY2022 than in FY2021. President Biden ended the program in February 2021, so barely 4,000 migrants were enrolled in the program in FY2021. In August 2021, the administration was ordered to reinstate MPP by a federal judge and resumed enrolling people in December 2021. In June 2022, however, the Supreme Court ruled that the Biden administration had the authority to end the program for good, with the formal end of “Remain in Mexico 2.0” announced in October 2022. Just over 5,500 migrants were enrolled in Remain in Mexico 2.0, but the processing disposition will likely disappear for the foreseeable future.

Conclusion

Though it is unclear when Title 42 will end, relying on the public health order is an unsustainable border policy. Examining the way that the Biden administration has used Title 8 at the border in FY2022 may indicate the administration’s more long-term vision for managing the border. Parole and Alternative to Detention programs will likely play a central role, and reliance on detention will probably decrease. However, changes in nationalities of migrants, agreements with Mexico or other countries on returns, and the effects of these policies on the rest of the immigration system, particularly ICE and the immigration courts, remains to be seen.