About Those Border Apprehension Spikes: They’re Not Real, but Do Reveal a Real Problem

By Todd Bensman as originally published on October 16, 2020 by the Center for Immigration Studies

U.S. Customs and Border Protection’s newly released 2020 year-end numbers seem to show what, at first glance, appears to be an escalating spike in illegal immigration over the Mexican border, from a mild 16,182 apprehensions in April to 47,207 in August, and 54,771 in September. Media like the Washington Post pointed to the elevating numbers as a notable blemish on President Donald Trump’s border enforcement record as he campaigns.

Politics aside, those numbers are far less than reported for an unnoted reason. But they do point to a problem with the Trump administration’s Covid-19 border containment plan, for which there is a solution.

Title 42 and Recidivism

Hidden behind the seemingly higher numbers is a brand new kind of “recidivism” pattern connected to the Covid plan, especially the Title 42 turn-back policy put in place in March.

Here’s what’s actually happening: Title 42 empowers Border Patrol agents to immediately transport all apprehended Mexican nationals to the nearest international bridge for a walk back across, called an “expulsion”, rather than the pre-Covid system where they would be detained in crowded facilities for judicial processes. The idea for the instant turn-backs was to keep ICE detention facilities as empty as possible to contain Covid spread inside them, and it has worked fairly well.

But a nasty and certainly unintended side effect soon became clear. Once returned across the border, the immigrants simply turn right back around and re-cross — and then, if they’re caught again, they try again and again, until they finally get through to the nation’s interior. This is happening because there is no negative consequence right now for repeated illegal entries, like federal prosecution in normal times.

On Wednesday, CBP released data showing that 37 percent of the 209,201 illegal immigrants apprehended and returned under Title 42 since late March were recidivist returnees they’d caught and returned once, twice, three times or more.

The math shows the number of multiple apprehensions beyond one per migrant to be 77,404, leaving 131,797 single-time apprehensions. Over six months, those 131,797 work out to be about 22,000 per month from the first of April through the end of September, which is historically low and politically tolerable even to Republican border hawks.

Stifled Solutions

The only logical fix to that revolving Title 42 door would be to add a deterring consequence for returning, such as federal prosecution resulting in jail time, fines, or five- or 10-year visa ineligibility penalties. But in Covid times, the federal court systems along the border are off-limits for the same reason.

At a CBP press conference Wednesday, CBP’s Chief Border Patrol Agent Rodney Scott acknowledged the recidivism rate that “has gone up dramatically” due to Title 42 returns, but also because of an inability to bring federal court action against multiple illegal entry offenders in order to keep courts, detention centers, and prisons safer from Covid, too.

“We’re returning people very quickly, but our ability — and willingness — to prosecute people, to have a consequence to the illegal activity of crossing the border, has been reduced,” Chief Scott told reporters.

“We know every single person that we take out with the Title 42 process, and put in to a judicial process, where we’re going to be face to face, is knowingly accepting additional risk to spread Covid in the United States. We’re balancing that with the Department of Justice and the courts very, very cautiously.”

Remote Repatriation: A Solution to Consider

Recidivism is not a new problem, but strategies to address it have come and gone. Now may be the time to reconsider the Alien Transfer Exit Program (ATEP). First brought online in 2008, ATEP significantly retarded the recidivism problem by separating immigrants from their smugglers and territory more amenable to illicit border crossings.

It involved either shipping Mexicans hundreds of miles inside the United States, and then over the border into unfamiliar and remote areas of Mexico (a process known as “lateral repatriation”), or shipping them deep into Mexico to original home towns (a program called Mexican Interior Repatriation).

The idea was to raise the costs to a migrant to return and to make it more difficult to reconnect with smugglers following failed entry attempts. ATEP never officially went away, but the Obama administration redirected funding from the program in 2013 and significantly diminished its use, according to a 2014 ICE document.

An ATEP-style program is actually in use right now, according to a CBP fact sheet provided to the Center for Immigration Studies, though it is not in broad use. Under it, CBP is flying illegal immigrants deep into Mexico if they have a serious criminal history and a great many Title 42 expulsions.

I could not immediately determine why ATEP programs are not in broad use for the Title 42 problem, though one reason might be that packing migrants aboard aircraft and buses would once again require the unwanted detentions and crowding aboard buses and airplanes, exposing migrants and federal workers to Covid spread.

But as with anything in these times of Covid, where there’s a will, there’s always a way.

Todd Bensman is the author of the forthcoming book America’s Covert Border War: The Untold Story of the Nation’s Battle to Prevent Jihadist Infiltration

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Todd Bensman

Todd Bensman

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Todd Bensman is Senior National Security Fellow for the Center for Immigration Studies, a 9-year counterterrorism intelligence manager, and 23-year journalist