Few illegal immigrants caught and released at the border on promises of turning themselves in to ICE later are showing up, defying Homeland Security Secretary Alejandro Mayorkas’ assurances of a “high rate” of compliance and leaving the department with few options for tracking down the migrants.
At best, the appearance rate is less than 25%, according to data from members of Congress and from U.S. Immigration and Customs Enforcement. It may be much lower.
That means thousands of illegal immigrants have defied their first orders from the Homeland Security Department and become fugitives. That bodes ill for the chances of getting them to comply with their court dates and, if they lose their cases, their deportations.
The no-show rate is part of this year’s record-setting surge of border jumpers and underscores the challenges facing the Biden administration.
In normal times, those who make claims of protection would be given what is known as a notice to appear, which is essentially a time-and-date summons for a hearing before an immigration judge.
But this year’s surge was so large and immigration courts so backed up that the Border Patrol was catching and releasing thousands of people without notices to appear. Instead, immigrants were given notices to report to an ICE office within 60 days to collect notices to appear.
Relying on the honor system has always been a gamble, and it’s one that has not paid out.
“This outcome was entirely predictable, so it’s hard not to conclude that this is an intentional effort by the Biden administration to flood the United States with more illegal immigration,” said Jon Feere, who served as chief of staff at ICE during the Trump administration.
Mr. Mayorkas assured senators that migrants were showing up for their hearings when confronted by Sen. James Lankford, Oklahoma Republican, in a May 13 hearing of the Homeland Security and Governmental Affairs Committee.
Mr. Lankford said Homeland Security employees “on the ground” told him that 19,000 people were caught and released without notices to appear at that point and asked the secretary how many were showing up to collect those notices.
“I can get that number to you because we have seen a high rate,” Mr. Mayorkas replied. “I should say that individuals who do not appear are a priority of ours for apprehension in the service of border security.”
Two weeks later, testifying to the Senate Appropriations Committee, he was again prodded on appearance rates and was bullish on how things were playing out.
“The appearance rate thus far, in terms of appearing at an ICE facility to report, has been very, very high, and I would be pleased to provide you with data,” Mr. Mayorkas said.
The Washington Times reached out to spokespeople for Mr. Mayorkas but didn’t receive a response.
Mr. Lankford told The Times that it “was either naive or intentional” to ask migrants to self-report to ICE.
“Secretary Mayorkas assured me that of the 19,000+ individuals in our country illegally, ICE is seeing a ‘high rate’ of illegal individuals turn themselves in to get a court date. However, the numbers show that 85 to 90 percent of those migrants are not even requesting a court date. They are simply disappearing into the interior of our country,” he said in a statement to The Times.
“This policy ignores the obvious problems and sets up our nation for even more illegal immigration,” he said.
The senator vowed to ramp up pressure on Homeland Security.
“I will hold every DHS nominee going forward until this crisis is resolved,” he said.
A hold is a way of delaying action on nominees and forces the Senate to dedicate floor time and hold roll call votes in order to overcome the hold for each pick.
Rep. John Katko of New York, the ranking Republican on the House Homeland Security Committee, said Homeland Security might have violated the law by releasing the migrants without notices to appear.
In a letter to Mr. Mayorkas, he demanded answers on the no-show rates, including the latest full numbers. He also asked Mr. Mayorkas to explain his plan for tracking down those who fail to report.
Sen. Rob Portman of Ohio, the ranking Republican on the Senate Homeland Security and Governmental Affairs Committee, also expressed concern about the numbers.
“The Biden administration must put into place policies to ensure all migrants with asylum claims follow proper procedures for the safety and security of all Americans,” he said in a statement to The Times.
ICE says it urges migrants to comply with the show-up directives and that noncompliance could be an unfavorable factor in immigration cases.
Those who have jumped the border since Nov. 1 are deemed to be priorities for ICE enforcement should they come into the agency’s purview, but there is no indication that Homeland Security is making any proactive effort to try to reach them.
ICE has fugitive teams assigned to look for illegal immigrants who have been ordered deported, but the agency didn’t say whether agents would be looking for no-shows.
The rate of appearance also is not clear because neither ICE nor Customs and Border Protection released the number of people who were expected.
Acting CBP Commissioner Troy Miller told a House committee in May that the agency does have the numbers.
CBP shows on its website that 79,000 migrants were caught and released in March, April and May, but a spokesman for the agency said they cannot publicly release the exact number released without notices to appear.
Some numbers have become public anyway.
Rep. Henry Cuellar, Texas Democrat, said in mid-April that 15,300 people had been released without notices to appear. A Washington Times source said in early May that the number was 18,000. Mr. Lankford said on May 13 that the number he had been told was 19,000.
Migrants are given a 60-day window to check in.
Taking Mr. Cuellar’s figure of 15,300 — all of whom are now outside the 60-day check-in window and should have turned up — the 3,446 who did show would be a compliance rate of 23%.
Using Mr. Lankford’s 19,000 figure would put the compliance rate even lower, at 18%.
It’s also likely that some of those 3,446 arrived in May and June and showed up at ICE offices well before their 60-day deadline, so the number of people who arrived in March and April and checked in is bound to be lower than the 3,446 total ICE provided, making the compliance rate even lower.
Mark Morgan, who served as acting head of ICE and then CBP during the Trump administration, said it’s irrelevant how many people were issued notices to appear.
Few would show up for their court hearings either way, and the ones who do aren’t going to turn themselves in if they lose their cases and are ordered deported.
“If you give them an NTA, they’re not showing up. If you don’t give them an NTA, they’re not showing up,” he said.
He said that’s why it’s important to detain illegal border crossers, including those who make asylum claims.
If they can be held, they do appear for their hearings and can be deported at the end of the process. If they’re not held, the chances of removing them if they’re ordered deported is low, he said.
Mr. Feere, though, said there would have been value in giving the court dates. If the migrant doesn’t show, a judge issues an in-absentia order of removal, meaning the person can be quickly deported if encountered by ICE.
Mr. Miller told Congress this year that issuing notices to appear was taking too long and people who were going to be released were piling up at Border Patrol facilities. Issuing notices to report cut the time in custody dramatically, he said.
Mr. Feere, who now serves as director of investigations at the Center for Immigration Studies, said CBP’s answer of “allowing thousands of illegal aliens to run free in the United States is obviously not a valid response.”
“If this plan were working, the same lines we see at the borders would be seen at ICE field offices around the country. That obviously isn’t happening,” he said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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