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Rep. Stefanik’s flawed comparison on border apprehensions since 2000

Rep. Elise Stefanik (R-N.Y.) speaks at a news conference June 29. (Shawn Thew/EPA-EFE/Shutterstock)
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“May was the third straight month of 170,000 apprehensions, which hasn’t occurred since 2000.”

— Rep. Elise Stefanik (R-N.Y.), in a news conference, June 29, 2021

Stefanik, the No. 3 leader for House Republicans, said President Biden “has failed to secure our southern border.” She pointed to monthly apprehensions carried out by U.S. immigration officials and indicated that the numbers are reaching peak levels last seen in 2000.

But the comparison she makes is not apples to apples.

The figures for March, April and May of this year mostly reflect individuals who are being expelled at the border regardless of their immigration status, under emergency public-health rules adopted to mitigate the spread of the coronavirus, according to U.S. Customs and Border Protection.

The numbers from 2000 include only apprehensions under federal immigration law, in land areas between legal ports of entry.

Immigration analysts say the combined figure for border apprehensions and coronavirus-related expulsions is not a bad indicator of migrant activity along the U.S.-Mexico border. However, they add that it’s tricky to compare this newfangled statistic to one from over 20 years ago that includes only apprehensions.

Penalties for breaking the coronavirus rules are less harsh than those under immigration law. Migrants do not get black marks on their records for attempting to cross the border under these rules, and the rate of recidivism is escalating this year. Factoring in rising recidivism rates, the monthly totals for unique individuals appear to be below 2019 levels.

The Facts

U.S. border officials report enforcement actions based on the type of “encounter” they had with a migrant.

Someone could be apprehended while attempting to cross the border, without authorization, between legal ports of entry. “Apprehensions” are carried out by the U.S. Border Patrol. “Apprehensions refers to the physical control or temporary detainment of a person who is not lawfully in the U.S. which may or may not result in an arrest,” according to CBP.

A migrant could be “inadmissible” upon reaching a port of entry, as determined by CBP’s Office of Field Operations.

“Inadmissibles refers to individuals encountered at ports of entry who are seeking lawful admission into the United States but are determined to be inadmissible, individuals presenting themselves to seek humanitarian protection under our laws, and individuals who withdraw an application for admission and return to their countries of origin within a short timeframe,” CBP says. All of this is legal.

In March 2020, U.S. officials began to use emergency public-health powers, tapped by President Donald Trump under a law known as Title 42, to carry out “expulsions.” An expulsion could stem from an apprehension or an encounter with an inadmissible migrant.

“Under this order, CBP is prohibiting the entry of certain persons who potentially pose a health risk, either by virtue of being subject to previously announced travel restrictions or because they unlawfully entered the country to bypass health screening measures,” CBP says. “Expulsions under Title 42 are not based on immigration status and are tracked separately from immigration enforcement actions, such as apprehension or inadmissibility, that are regularly reported by CBP.”

Since the coronavirus pandemic began, instead of following the lengthier process outlined in federal immigration law, U.S. authorities in many cases tap these public-health emergency powers to expel migrants quickly back to Mexico. This year, Title 42 expulsions resulting from an apprehension far outnumber the separate total for apprehensions under immigration law.

Now, let’s dig into the numbers Stefanik gave.

With over 1.6 million border apprehensions, the year 2000 marked the most recent peak for unauthorized migration attempts.

Stefanik, the House Republican conference chair, said it was the last time apprehensions reached 170,000 during three straight months, and she’s correct on that score. Apprehensions exceeded 170,000 from January through April of that year.

As for 2021, apprehensions under immigration law and coronavirus-related expulsions stemming from apprehensions totaled 169,204 in March, 173,686 in April and 172,011 in May. We excluded inadmissible migrants from this total because they are not comparable to border crossers who violate the law.

“In 2000, the vast majority of the migrant flow took place between ports of entry, and there was no Title 42 policy in place. So the best number to look at to estimate the activity at the border is that apprehensions number,” said Jessica Bolter, an analyst at the Migration Policy Institute. “In 2021, migrants are coming both to ports of entry and are crossing in between ports of entry (largely because now there are more asylum seekers crossing the border than in 2000, and they are not trying to avoid detection by CBP), and some of them are being expelled under Title 42. So, to estimate total migrant activity at the border, it is helpful to add together apprehensions, inadmissibles, and expulsions.”

But those numbers do not indicate how many people make it through to the United States, Bolter said, and it’s worth noting that many of the individuals being intercepted in 2021 are repeat offenders, more so than in previous years.

The reason? Analysts pointed to the emergency coronavirus rules that Trump instituted and Biden kept. (The Biden administration is considering whether to halt these emergency rules by summer’s end.)

“Prior to Title 42 being implemented, if a single adult crossed the border illegally and did not seek asylum, they would very likely be formally ordered removed,” Bolter said. “Once someone has a formal removal on their record, consequences for getting caught crossing illegally a second time can be more severe, sometimes including criminal prosecution.”

“Under Title 42, migrants are not formally processed for removal, so there is no mark on their record that could increase their penalties if they get caught a subsequent time,” she added. “Also, prior to Title 42, single adults from Central America who were caught crossing the border illegally would be sent back to their home countries, from where it is more difficult to journey to the border, whereas under Title 42, they are sent back to Mexico’s border region, from where it is much easier to try to cross the border again.”

CBP has said that in May 2021, 38 percent of encounters were of “individuals who had at least one prior encounter in the previous 12 months.” That means about 68,000 encounters were of repeat crossers, leaving about 112,000 individuals who came to the border for the first time.

Adjusting for recidivism rates, the number of unique individuals attempting to cross the border appears to be lower this year than in the comparable period in 2019, when Trump was still in office and the recidivism rate was below 10 percent, according to calculations by Aaron Reichlin-Melnick, an analyst at the American Immigration Council.

Another dynamic to consider: The border is more secure now than in 2000 — the Border Patrol ranks have doubled, and technological advances such as drones have vastly improved surveillance — so U.S. authorities intercept a greater proportion of migrants than they did two decades ago.

The Department of Homeland Security keeps tabs on this through a statistic called the “model-based apprehension rate,” which estimates the percentage of people crossing the border who are caught — “in other words, how secure is the border, because you would want to have as close to 100 percent as possible,” Reichlin-Melnick said.

In the early 2000s, the model-based apprehension rate routinely was in the 30 percent range, and now it’s closer to 75 percent, he added.

“Twenty years ago, crossing the border without being caught was more likely than not,” Reichlin-Melnick said. “According to DHS estimates, that stopped being true in 2012,” when the model-based apprehension rate surpassed 50 percent.

Stefanik’s spokeswoman did not respond on the record. (Update: Instead of responding to our questions, Stefanik posted a Twitter thread attacking us before the fact check was published.)

The Pinocchio Test

These statistics often bedevil politicians of both parties, journalists and experts alike. U.S. immigration agencies use a byzantine system of numbers that can’t be easily shoehorned into plain English.

But the bottom line is that too much is being rolled up into the 2021 figures to make a simple apples-to-apples comparison with border apprehensions in 2000, as Stefanik did.

Combining apprehensions under immigration law and coronavirus-related expulsions does give a reading on migrant activity along the border, as analysts told us, but some caveats should be included so that laypeople can understand what is actually happening.

The surging recidivism rate this year indicates that apprehensions of unique individuals are actually down compared with 2019. The model-based apprehension rate from DHS estimates that most border crossers are intercepted these days, whereas most of them were not in 2000.

For a flawed comparison, Stefanik earns Two Pinocchios.

Two Pinocchios

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