Border Patrol Will Release Migrants From Custody The Minute Title 42 Ends, Officials Say

Move is meant to provide relief as holding facilities reach maximum capacity following expected migrant surge

U.S. Border Patrol agents check passports in El Paso / Getty Images
May 11, 2023

Border Patrol agents will release aliens from custody the moment Title 42 ends, two senior agency officials tell the Washington Free Beacon.

The move is meant to provide relief for authorities on the southern border as holding facilities reach maximum capacity following an expected migrant surge. The policy removes tracking mechanisms and check-in requirements usually given to migrants released while awaiting asylum hearings. It is unclear whether the revised policy has any mechanisms in place to ensure aliens will comply with future asylum summons.

Experts anticipate that up to 14,000 aliens a day could enter the United States in the weeks following the termination of Title 42, a public health rule that allowed law enforcement to quickly deport aliens. Homeland Security secretary Alejandro Mayorkas has privately admitted that the end of Title 42 will "strain our workforce, our communities, and our entire system." On Tuesday, Biden said the U.S.-Mexico border will be "chaotic for a while."

The policy set to take effect is called "Released on Own Recognizance" (ORs). ORs differ from the normal "alternatives to detention" protocol in that they do not require migrants to check in with immigration authorities before they are given a court date. Those check-ins theoretically allow authorities to know the location of an alien in case they do not comply with their release orders, although deportations have plummeted under Biden.

Those changes, the two senior agency officials said, raise serious security concerns and contradict White House assertions that the federal government is prepared for the end of Title 42. Agents are already overwhelmed at several points along the southern border and do not anticipate they will have enough manpower to even provide aliens with a notice to appear.

"We will be starting to cut them free right from the station after Title 42 ends," one senior Border Patrol official stationed in the southwest said. "We’re told they will receive a court date, but some border sectors already have holding facilities at over 200 percent capacity. So who knows what will happen?"

Reports surfaced Tuesday that the White House is preparing to issue the order. But the two senior officials said the decision was made Tuesday evening. More than 11,000 aliens were apprehended illegally crossing the southern border that same day, the highest ever recorded in American history.

Mayorkas said at a Wednesday press conference that only "a fraction of the people we encounter" will be issued ORs. DHS did not respond to a request for comment.

One senior Border Patrol official stationed in Brownsville questioned Mayorkas’s assertion. The sheer number of aliens arriving over the next few weeks, the official said, will make it extremely difficult to maintain order.

"Saying you are issuing ORs and actually doing it are two different things," the individual said. "It sounds good to tell the press, but some holding capacities are already way above 100%. Imagine what it will be in the days to come."

Border Patrol officials warned earlier this month that as many as 700,000 migrants are waiting in Mexico to cross into the United States. Meanwhile, the Darién Gap, which connects South and Central America, has seen a 500 percent increase in migrant crossings.