Randy Clark: Final Hours Tick until Biden’s Next Border Debacle Begins

In less than 24 hours, the CDC’s Title 42 COVID-19 expulsion authority will expire. The end of the expulsion authority will mark the final departure from any enforcement policies enacted under the Trump administration that saw migrant crossing numbers quickly drop in late 2019 and 2020. Despite the latest media blitz by the Secretary of Homeland Security Alejandro Mayorkas assuring Americans that the Biden administration has things under control, we should all be skeptical.

DHS Secretary Alejandro Mayorkas was busy assuring reporters during a press conference on Wednesday, once again, that the border will not be open as the drawdown of the CDC Title 42 authority expires. “Let me be clear, the lifting of Title 42 public health order does not mean our border is open, in fact, it is the contrary,” the secretary emphasized.

According to a tweet by the National Border Patrol Council, the labor organization representing rank and file agents, 79 percent of more than 8,000 migrants crossing daily in recent days were released into the United States to pursue asylum claims — highly contrary to what a reasonable person would deem a closed border.

For those that choose to challenge Mayorkas’ border assessment, the agency head and his upper managers cite cartel misinformation and disinformation as the cause of the large surge in recent migrant crossings. The truth of the matter lies with what migrants are experiencing after recent border crossings. In today’s world of technology, migrants are equal beneficiaries of the ability to quickly communicate with smartphones. Using communication apps such as WhatsApp and others, migrants immediately alert others to the scale of the Biden administration’s use of “Catch and Release.” From there, the rush to the border grows.

The latest move by the current administration is but one indication the administration is wholly unprepared for the looming humanitarian crisis. The announcement of the deployment of 1,500 members of the military to assist in the crisis who will be spread across the nearly 2,000 miles of the southern border is laughable.

Concentrating the soldiers in just the five busiest Border Patrol sectors is likely. The effectiveness of such a small deployment will have on the anticipated onslaught of migrants after Friday becomes nominal at best. The mere fact that this number of troops was deemed adequate by the administration when most border processing and detention facilities are already overcrowded, signals the Biden administration has yet to grasp the severity of the pending immigration disaster that looms.

Regardless, the military members deployed will lack the legal authority to determine a migrant’s citizenship, take sworn statements, or issue Notices to Appear for formal removal hearings. Those authorities are specific to Border Patrol agents and immigration officers.

The increase in processing times under traditional Title 8 immigration authority, compared to Title 42, is significant and will cripple DHS’s ability to detain and process migrants without significant augmentation to detention capabilities. Under the CDC’s Title 42 expulsion authority, migrants are not allowed to present a claim for asylum. A Border Patrol agent can fully process a migrant under the authority in approximately 10 to 15 minutes.

In stark contrast, processing under Title 8 authority takes an average Border Patrol agent more than one hour without any complicating factors. Factors that slow the process include the need to utilize translation services for migrants who do not speak Spanish. That slows the process of obtaining biographical data and the requirement to explain intricate legal options to each migrant.

Although the secretary spoke of increased use of expedited removal, which carries a bar of five years for legal reentry into the United States, the authority is not without flaws. Under Title 8 United States Code, migrants who express a fear of persecution or fear of returning to their home country or a third country willing to accept them halt the process for border agents. In these instances, which apply to all asylum seekers, a Credible Fear interview must be conducted by an asylum officer. The workforce available to conduct the massive number of credible fear interviews does not exist.

DHS also placed a limitation on the use of the expedited removal expansion, limiting the effectiveness of the option further. The process will not be applied to family unit migrants with children or unaccompanied migrants.

In January 2021, President Biden discontinued the application of the Remain in Mexico program for unaccompanied migrant children. The result of that limitation saw the number of unaccompanied migrant children crossing the border into the United States rise from 33,000 in 2020 to more than 140,000 in 2021. The number of unaccompanied migrant children sent into the United States rose to more than 150,000 in 2022.

The available detention space along the southwest border, already strained above capacity at most locations, will at best result in a massive increase in the administration’s use of catch and release to ease overcrowding. At worst, the immediate logjam in processing wait times at the facilities will result in a situation where thousands of migrants will be detained in an outdoor setting, a situation experienced in Del Rio, Texas, in September 2021 when more than 20,000 mostly Haitian migrants crossed the Rio Grande over a period of several weeks.

During that crisis, for more than one month, the number of mostly Haitian migrants arriving at the camp climbed rapidly without a significant federal response. Border Patrol agents in Del Rio and local authorities managed the situation until late September when Mayorkas appeared for a press event in Del Rio. The secretary told a gaggle of reporters, “The border is not open,” as he stood on the bridge where 15,000 to 20,000 mostly Haitian migrants stood on U.S. soil in the crudely constructed shanty town on the banks of the Rio Grande.

In a sign that Mayorkas already knows the magnitude of the immigration catastrophe on the horizon, the handwashing by the administration has already begun. More than once during Mayorkas’ Wednesday press conference, he laid blame squarely at the feet of Congress for failing to give the administration the resources to address the self-induced immigration crisis. He further blames them for not fixing a broken immigration system for two decades.

Border communities that will see non-government shelters overwhelmed and city streets turned into migrant campsites will likely get nothing more than blame-shifting rhetoric as they exhaust taxpayer funds while struggling with the catastrophe. Larger metropolitan areas, some of whose leaders consider to be sanctuary cities, are already frustrated by the cost of migrants in hotels and city shelters will likely get the same unless an endless stream of federal funding is granted.

Randy Clark is a 32-year veteran of the United States Border Patrol.  Prior to his retirement, he served as the Division Chief for Law Enforcement Operations, directing operations for nine Border Patrol Stations within the Del Rio, Texas, Sector. Follow him on Twitter @RandyClarkBBTX.