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Amid surge, border agents in Rio Grande Valley are releasing migrants without court dates

Some immigrants said they were being released inside the U.S. without knowing how they will be contacted to appear for their asylum hearings.
U.S. Customs and Border Protection agents take people into custody people near the border with Mexico on March 20, 2021, in Hidalgo, Texas.
Customs and Border Protection agents take people into custody people near the border with Mexico in Hidalgo, Texas, on Saturday.Julio Cortez / AP

WASHINGTON — Border agents in the Rio Grande Valley, the center of the migrant surge, were authorized Saturday to begin releasing adult migrants and families from custody before they have been given dates to appear in court, according to an internal document obtained by NBC News.

The move is "intended to mitigate operational challenges, including risks to national security, during significant surges of illegal migration as currently exist in the Rio Grande Valley" by reducing the time immigrants spend in custody, according to the document.

Some immigrants said they were being released without knowing how they would be contacted.

Releasing a migrant before determining a court date for an immigration hearing, which decides whether the migrant will be deported or allowed to stay in the U.S., is a divergence from Customs and Border Protection policy. CBP typically gives all migrants "notices to appear" before they are released or sent to Immigration and Customs Enforcement for detention.

Customs and Border Protection agents take people into custody Saturday near the border with Mexico in Hidalgo, Texas.Julio Cortez / AP

In the document, CBP instructed agents in the Rio Grande Valley that they are authorized to release migrants without court dates when their facilities meet one of a number of criteria, including reaching 100 percent capacity. According to data recently obtained by NBC News, as of Sunday, 5,175 immigrants were in Border Patrol custody in the Rio Grande Valley, where facilities can hold 715.

On Monday morning, some immigrants who spoke on condition of anonymity said they had, in fact, been released without court dates. They said that before they were released, they were asked by U.S. border agents for contact information, which they provided, and given documents with "to be determined" court dates. They were told they would be contacted within 30 days.

Others said they were not asked for contact information and were simply given identification documents that they were told to show to local law enforcement officials if they were stopped while in the U.S. It is not clear how the government will reach those people to see that they go before immigration judges.

The document does not specify, and a CBP spokeswoman did not say, whether border agents were collecting contact information for all migrants or how they planned to reach immigrants who did not provide information.

The CBP spokeswoman said that the border remains closed to families and single adults but that because Mexico does not have the capacity to take back all families, some are being processed in the U.S.

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"In some cases, families are placed in removal proceedings further along in the release process rather than while they are at the Border Patrol station," the spokeswoman said. "All families, however, are screened at the Border Patrol station, including the collection of biographical and biometric information and criminal and national security records checks."

According to data obtained by NBC News, Border Patrol apprehended 1,807 migrants who were traveling as parts of families on Friday, and only 179 of them were expelled back into Mexico.

Releasing adult migrants and families would create more room for children in Border Patrol custody. Unaccompanied migrant children are particularly affected by overcrowding, as they must remain in Border Patrol custody until they are transferred to the care of the Department of Health and Human Services. As of Sunday, more than 822 children had been in Border Patrol custody over 10 hours in facilities that Homeland Security Secretary Alejandro Mayorkas has said are "no place for a child."

Under no circumstances would unaccompanied migrant children be released from Border Patrol custody, the document said, as current law mandates that they be cared for and connected with family members or other vetted sponsors by HHS.

Other criteria that allow agents to release single adult migrants and families from Border Patrol custody without court dates include when the Border Patrol facilities in a sector are at 75 percent capacity and the number of immigrants coming in exceeds the number of immigrants leaving for a 24-hour period. In addition, agents may release migrants if the number of unaccompanied children in custody exceeds 50 percent of the stations' capacity and the children are not able to be placed with HHS within 48 hours, the document said.

Agents are instructed not to release immigrants if it is determined that they pose risks to national security or public safety, according to the document.