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Border policies under consideration could overwhelm system, DHS officials warn

White House and congressional negotiators are discussing steps that officials say could potentially fill detention centers and halt the apprehension of migrants at the border.
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Department of Homeland Security officials are warning about the impact of policies being discussed in negotiations between the White House and Congress that would increase deportations, deny many migrants the right to seek asylum and make detention mandatory, according to current and former officials who spoke to NBC News. 

“It would break the border,” one current Homeland Security official predicted. 

“It would be completely counterproductive,” another warned.

The second official noted that Customs and Border Protection detention centers, as well as those of Immigration and Customs Enforcement, would quickly become so full that the agencies would be unable to keep apprehending migrants as they crossed the southern border.

“Border Patrol would essentially have to take a knee and watch them walk by,” the second official said.

Currently, Customs and Border Protection holds migrants for less than 72 hours, screens them for national security risks and releases most of those who are not considered high risk without sending them to ICE detention. 

If a new bill mandates that all undocumented migrants be held in ICE detention, even those not considered a security risk, CBP and Border Patrol could have no place to temporarily detain or process new arrivals, the officials fear.

No deal has been agreed to by Congress and the White House, and one source said Homeland Security would be a part of any conversation about the logistics of detaining more migrants.

Members of the Congressional Hispanic Caucus are also raising concerns.

"I’m deeply disappointed that the Administration has caved to inhumane policy changes to our asylum system and immigration policy without input from the Congressional Hispanic Caucus," said Rep. Gabe Vasquez, a Democrat from New Mexico who represents a a border district. "Senate and House Republicans are trying to circumvent the legislative process to enact their draconian immigration policies in exchange for critical aid to our allies."

ICE also holds immigrants who are illegally in the country and who have committed crimes after they serve prison or jail sentences. One former Homeland Security official told NBC News there is concern that ICE would also run out of space for serious offenders if Congress mandated that the agency detain all new arrivals. 

“ICE would have to detain families instead of detaining a single adult male accused of rape,” the former official said hypothetically. 

A spokesperson for Homeland Security did not immediately respond to a request for comment.

Also under consideration in the negotiations, and perhaps gaining more traction, is a proposal to increase the authority of Customs and Border Protection to expel more migrants back to Mexico before they are screened for asylum. 

One former and two current Homeland Security officials cautioned that the Biden administration saw the limits of that practice under Title 42, the pandemic-era health policy that sent migrants back to Mexico before asylum screenings. Border crossing numbers soared under Title 42 in part because Mexico could not take back the large numbers of migrants being returned. 

“We’ve seen how that works, and it doesn’t. We are very clear eyed about it,” one current official warned. 

Homeland Security Secretary Alejandro Mayorkas was on Capitol Hill on Tuesday as negotiations were underway. A department source familiar with Mayorkas’ role said he has been explaining how certain policies would be implemented but not negotiating the terms of a deal.

“Secretary Mayorkas and DHS staff have been providing technical assistance, as requested, to senators on both sides of the aisle and their staff,” the Homeland Security source familiar with the discussions said. “DHS is not negotiating the terms of any policy proposal.”