Since April 2020, the number of people apprehended by U.S. Customs and Border Protection (CBP) near the Southwest border has been rising steadily. In early 2021, these increases have become a touchpoint in the public debate, with growing concerns voiced about the public health and humanitarian ramifications of increasing migrant arrivals.
The concerns echo those raised in the summers of 2014 and 2019, when influxes of migrant families and unaccompanied children (UACs) fleeing violence and poverty in Central America overwhelmed CBP’s capacity to process them effectively. In early 2021, there has been an influx of unaccompanied children, presenting a significant challenge for CBP and other agencies to process them safely and securely. But the rising overall apprehensions numbers are driven largely by an increase in single adults from Mexico, not asylum-seeking families from Central America. In fact, much of the recent uptick is the result of rising recidivism rates — or individuals who are apprehended, expelled back into Mexico, and then apprehended again upon attempting to recross the border. The continued use of a pandemic-era border policy called Title 42 is playing a key role in driving both the rising recidivism rates and the increase in overall apprehensions.
This explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs, and providing additional context on reports of increased migration to the U.S. and releases of migrant families into the interior.
For additional information about what is happening at the border, watch a March 16 discussion covering the state of play between National Immigration Forum President and CEO Ali Noorani and Senior Policy Associate Danilo Zak.
What’s Driving the Increase in Apprehensions at the U.S.-Mexico border?
U.S. Customs and Border Protection (CBP) tracks — and regularly releases — general data describing the total numbers of “Southwest Land Border Encounters.” These total apprehension numbers are often viewed as a proxy for the rate of overall unauthorized immigration into the U.S. But there are a number of additional factors which might drive an increase in encounters, and further analysis of the CBP data provides additional insights on these factors.
Overall land border encounters have increased since April, and they have continued to rise after President Biden’s electoral victory in November.
Monthly Apprehension Numbers at Southwest Border Since April FY 2020
Source: CBP Newsroom
The data show that encounters hit a low of approximately 17,000 in April at the start of the COVID-19 pandemic and have since risen to just over 180,000 in March 2021. What is driving this increase?
It is first important to put the overall encounter numbers in context. While we last saw a monthly number over 180,000 in 2001, numbers about this high were fairly common in the 2000s. In addition, total apprehension numbers tend to hit annual high water marks in the spring.
Monthly Apprehension Numbers at Southwest Border Since FY 2000
Recent increases in migration at the border, including in the spring of 2019, were driven largely by asylum seeking families and children from Central America. In 2021, the numbers of families and unaccompanied children (UACs) at the border have risen significantly after cratering at the start of the pandemic. But these account for only a portion of the recent overall increase in the apprehensions, and the numbers of families and UACs have begun to decline moderately in recent months. CBP encountered 58,952 family units, accompanied children, and UACs in May 2021. By contrast, in May of 2019, that number peaked at 100,518.
Monthly Apprehensions of Families and Unaccompanied Children (FY 2018-2021)
Source: CBP Newsroom
Instead of families and UACs, the increased apprehensions are largely the result of increasing recidivism rates of Mexican adults traveling alone. Pandemic era procedures called “Title 42” expulsions carry fewer penalties than traditional processing for repeat attempts of unauthorized entry. The result is an increase in single adults attempting to cross the border over and over again in an attempt to avoid apprehension. This is depicted in a sharply rising recidivism rate since Title 42 procedures began in March 2020, rising from 7% of apprehensions representing repeat crossers in 2019 to over 37% since March 2020.
Annual Recidivism Rates at the Southwest Border
The high recidivism rates are backed up by recent reporting on the border. According to one report, less than 10% of migrants in Tijuana hoping to cross into the U.S. are new arrivals. Most have been waiting near the border for a year or more. In May, CBP reported that 38% of all arrivals were repeat crossers. Recidivism is concentrated among single adults, so the rate is likely far higher than 38% for this group.
The available CBP data depicts a situation in which a pandemic-era protocol implemented in March 2020 is continuing to incentivize repeated attempts by single adults to cross the border without authorization.
What are Title 42 expulsions and how are they being implemented at the border under the Biden administration?
In March 2020, in response to the onset of the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) issued a rule that gives the Department of Homeland Security (DHS) the authority to immediately expel or deport anyone who attempts to cross the border without authorization. DHS and CBP immediately started using the rule, issued under Title 42 of the 1944 Public Health Service Act, to expel almost everyone apprehended at the border, including vulnerable asylum seekers, pregnant women, and unaccompanied children.
Under these “Title 42” procedures, some individuals were expelled to their home countries via deportation flights, and others were summarily returned to Mexico just hours after they were apprehended at the border. Because of their expedited nature, these expulsions were not processed according to traditional border processing procedures, which occur under Title 8 of the U.S. Code. As a result, Title 42 expulsions prevent any access to due process for those seeking protection from persecution. These expulsions are also not documented in the same manner as Title 8 deportations, and while under Title 8 repeated attempts to enter without papers carries a felony offense, under Title 42 there are no additional penalties for repeat unauthorized crossers.
The Trump administration expelled over 200,000 individuals at the border under Title 42, including over 16,000 unaccompanied children. The Biden administration has continued to expel the majority (62% in May) of asylum seekers and others arriving at the U.S.-Mexico border under Title 42. The administration is not applying the procedures to unaccompanied children, who are instead subject to normal processing guidelines and referred to Office of Refugee Resettlement (ORR) shelters to be screened for human trafficking and to continue their cases in immigration court. The administration has also instituted exceptions to Title 42 for certain vulnerable individuals, particularly those in family groups. In May 2021, approximately 80% of arriving families were processed into the U.S. and allowed to pursue their asylum claims.
What is happening to unaccompanied children when they arrive at the border?
While Title 42 and rising recidivism rates are driving the uptick in overall apprehensions at the Southwest border, there has been a sharp increase in arriving unaccompanied children (UACs) as well. In March, for example, while UACs made up only about 11% of overall apprehensions, the number of arrivals doubled from the month before. The number of arriving UACs has declined slightly in April and May.
Monthly Apprehensions of Unaccompanied Children (FY 2018-2021)
Source: CBP Newsroom
When unaccompanied children are apprehended at the border, they are first taken to CBP holding centers. These facilities are not meant to house children, and by law minors must be transferred to the care and custody of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) within 3 days. ORR shelters are staffed by trained childcare providers, and once transferred to ORR children must be further screened to determine whether they have been victims of human trafficking or have a credible fear of persecution or torture if returned to their home country. ORR works to process and release the children to vetted sponsors, including family members or foster homes, while their immigration proceedings continue.
ORR shelters have a capacity of approximately 13,600. But in February 2021, ORR shelters were at 40% reduced capacity (8,483 beds) due to safety protocols related to the COVID-19 pandemic. The increase in arriving children meant the shelters were quickly reaching their reduced capacity, and children were getting backed up in CBP holding facilities for longer than the maximum allowable 72 hours.
The Biden administration has taken a number of steps to address this challenge. As of June 21, the U.S. is operating thirteen emergency housing sites under HHS, 12 “Emergency Intake Sites” and one “Influx Care Facilities.” These facilities are not state-licensed and are larger than typical ORR shelters, but the Biden administration has stated that it intends to treat children according to state licensing requirements even in the new facilities, including by providing mental health care, education, and legal services. A recent court filing in an ongoing settlement concerning the treatment of unaccompanied children details the conditions at various facilities and shelters. On March 5, the Biden administration also directed existing permanent ORR shelters to try to return to their full capacity of 13,600 beds. As of May 13, HHS has increased state-licensed permanent shelter capacity to 10,543 beds.
The administration has also worked to expedite the processing of children who can be released to vetted sponsors. In the past, it has taken up to six months for many children to be released to sponsors, but due to recent efforts to expedite the process, the average time spent in ORR custody has dropped to 27 days.
As of early April, all of these actions have allowed the administration to begin to reduce the number of children stuck in CBP custody.
Are immigrants being released into the interior?
Other than unaccompanied children and most families, individuals apprehended at the border — including asylum seekers — are immediately expelled back to Mexico or put on deportation flights to their countries of origin. However, there are limited groups of migrants who are being held in detention facilities or released into the interior under Alternatives to Detention (ATDs), where they are supported and sheltered by nongovernmental humanitarian groups and border communities.
Beginning in early February, CBP began releasing some families into the interior at a small fraction of locations along the border. The families had initially been put into Title 42 procedures and were set to be expelled back into Mexico, but the Mexican government did not agree to accept them because migrant shelters in certain areas had reached capacity. The change was due in part to a series of reforms to Mexican law regulating the detention of migrant children and families, which were passed on November 12, 2020. In March, the Biden administration also stopped expelling families with children under seven years old or with particular vulnerabilities. According to CBP data, under one third of all individuals in family units were expelled under Title 42 in March, a drop from the over 60% of families who were immediately expelled in January. The families who are not expelled are processed under Title 8 or released with booking records after parents are photographed and fingerprinted. In early May, the administration further clarified exceptions to Title 42 for families, setting up a system in which NGOs on the Mexican side of the border could refer vulnerable families to be processed in at ports of entry. In May, approximately 80% of families were processed in to the U.S. and placed in immigration court proceedings.
Also in February, the Biden administration began slowly processing in 25,000 migrants that were caught in the Trump-era Migration Protection Protocols (MPP), also known as “remain in Mexico.” Under MPP, asylum seekers from Central America had been required to stay in Mexico’s dangerous Northern border region while awaiting their cases to be heard in U.S. immigration court. A regularly updated Human Rights First report has documented over 1,500 cases of publicly reported murder, rape, kidnapping, and other violent assaults experienced by those forced to wait in MPP.
Do asylum seekers at the border pose a public health risk during the COVID-19 pandemic?
According to numerous public health experts, with proper medical guidance and procedures, the U.S. can both safeguard public health and effectively offer protection to asylum seekers fleeing persecution at the Southwest border. In an August 6 letter to the Trump administration, 170 public health experts urged DHS to rescind Title 42 procedures, and instead implement standard border processing measures “grounded in the best available public health guidance.” The letter continued that the U.S. “may use health measures such as testing, or quarantine, as needed.” According to a March 10 Associated Press report, there is no evidence arriving migrants are a significant factor contributing to the spread of the virus.
The few asylum seekers who are being released into the U.S. are subject to more significant screening procedures than the millions of individuals who cross legally at ports of entry for work, trade, government business, and other reasons. In a given month during the pandemic, over 8 million individuals cross the border legally. These travelers are not tested or subject to quarantine procedures.
However, as of February 2021, while some screening, testing, and quarantining procedures are in place for asylum seekers across the border, their implementation has been haphazard. Border areas are differently resourced and employing different screening processes. The San Diego region is requiring migrants to quarantine for ten days upon release, but there are no strict quarantine rules along the Texas border. Migrants processed in under MPP are all receiving tests and are required to test negative before crossing the border. Only some of the other released asylum seekers are receiving state-funded COVID-19 tests. Most unaccompanied children are subject to testing and quarantine procedures while they are processed, but COVID-19 outbreaks have still occurred at some emergency sites.
Can we expect migration at the border to continue to increase in the coming months?
Apprehensions may remain at high levels in the coming months, particularly as long as Title 42 is still in place and driving up recidivism rates. In addition, the root causes driving migration from Central America have not been addressed, and migrants are likely to continue to attempt the journey to the U.S., seeking protection and new opportunities. Past seasonal migration trends suggest annual peaks usually occur in March, April and May.
However, overall arrival numbers have plateaued in April and May. In addition, large migrant caravans from Central America continue to be stopped by Guatemalan and Mexican border authorities before they reach the U.S. A caravan of over 2,300 migrants from Central America was blocked by Guatemalan security forces in late January. On March 10, the Mexican government announced it stopped approximately 200 Central American migrants on two buses traveling towards the U.S. border. Vice President Kamala Harris has lead diplomatic engagement with Mexico and other countries in the region to combat smugglers and address the root causes of migration.
Even the limited number of asylum seekers being allowed to enter the border today are posing logistical challenges regarding orderly processing procedures. The treatment of unaccompanied children in government custody continues to raise humanitarian concerns. The administration is working quickly to respond, but the need for practical solutions remains urgent.