Biden admin pressed on legal authority for releasing migrants into US after DHS reveals numbers

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FIRST ON FOX: Rep. Andy Biggs, R-Ariz., on Wednesday pushed the Department of Homeland Security for more answers to questions about its legal basis and authority for releasing migrants into the U.S. interior – after DHS revealed the number of migrants it released into the interior without a notice to check in with a local Immigration and Customs Enforcement (ICE) office.

"The data that you provided in your response confirms what I have long suspected, which is that under your leadership the Department of Homeland Security is failing to faithfully execute the laws passed by Congress," Biggs, the co-chair of the House Border Security Caucus, wrote in a letter to Secretary Alejandro Mayorkas.

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Biggs had written to Mayorkas in May with a list of questions on the release of migrants into the interior, including how many migrants had not received a Notice to Appear (NTA) in court, and how many had not reported to ICE if they had been released with a Notice to Report (NTR) at an ICE office within 60 days.

If migrants are not removed via Title 42, the Biden administration has typically been releasing them into the interior with NTAs – which order migrants to appear at a set court date. 

Rep. Andy Biggs, R-Ariz., is warning of a dire border situation after a trip to Yuma, Arizona. (Rep. Andy Biggs)

But that process can take hours, and amid the crush at the border in the spring and summer months, Border Patrol began releasing migrants with the Notices to Report (NTR) – which take mere minutes to fill out. Since then, DHS has been trying to get NTAs to those who were released with NTRs. That NTR process was eventually replaced by releasing migrants under a parole authority into "alternatives to detention" – which refers to a release with some form of monitoring via home visits or an ankle bracelet.

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The DHS response, coming eight months after Biggs sent the initial letter, revealed that between March 21, 2021, and Jan. 10, 2022, 164,584 migrants were released via prosecutorial discretion. Of those, 94,036 were released with an NTR, and 70,548 were released via parole and placed into alternatives to detention.

The response says that of the 164,584 released, only 110,176 have checked in with an ICE office – 20,055 of those who had not were still in the 60-day window of compliance. This means more than 30,000 migrants released this way have not checked in.

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In response to a question on how many illegal immigrants have been deported, DHS said ICE is "unable to statistically track the number of noncitizens released by CBP with a charging document or instruction to check in with ICE who have been removed from the United States."

Biggs, as well as immigration hawk groups, had accused DHS of being patronizing in its response to the three-term congressman and said the answers were insufficient.

"Secretary Mayorkas took eight months to respond to questions I asked," he said. "DHS’s answers – more like excuses – reflect the dangerous state of our southern border thanks to the Biden administration’s destructive policies. I have requested additional information from DHS and expect a more timely and more complete response from Secretary Mayorkas."

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In his new letter sent Wednesday, Biggs asks for the specific authority in the Immigration and Nationality Act (INA) that DHS is releasing "applicants for admission" and the authority on which it has released migrants with notices to report to a local ICE office.

Biggs also requests the numbers on how many migrants who have been released on parole, with NTRs or NTAs, and who have failed to report as ordered have been investigated, apprehended and/or deported. He also asks if DHS are considering migrants who fail to appear at hearings a "flight risk" and whether such illegal immigrants are then investigated.