[Federal Register Volume 90, Number 181 (Monday, September 22, 2025)]
[Notices]
[Pages 45396-45398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-18255]
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DEPARTMENT OF HOMELAND SECURITY
Finding of Mass Influx of Aliens
On January 23, 2025, the Acting Secretary of Homeland Security
issued a Finding of Mass Influx of Aliens. This finding went into
effect immediately (on January 23, 2025) and remained in effect for 60
days (until March 23, 2025). The Acting Secretary's finding published
in the Federal Register on January 29, 2025. See 90 FR 8399. On March
21, 2025, I extended the January 23, 2025, Finding of Mass Influx for
180 days (until September 17, 2025). My decision extending the Finding
of Mass Influx published in the Federal Register on March 25, 2025. See
90 FR 13622. Upon review of the current situation at the border, I am
extending that finding.
The Immigration and Nationality Act (INA), at 8 U.S.C. 1103(a),
provides an expansive grant of authority, stating that in the event of
a mass influx of aliens off the coast of the United States or a land
border, the Secretary may authorize a State or local law enforcement
officer, with the consent of the officer's superiors, to perform duties
of immigration officers under the INA. In turn, section 65.83 of Title
28 of the Code of Federal Regulations allows the Secretary \1\ to
``request assistance from a State or local government in the
administration of the immigration laws of the United States'' under
certain specified circumstances. Among those circumstances are when
``[t]he [Secretary] determines that there exist circumstances involving
the administration of the immigration laws of the United States that
endanger the lives, property, safety, or welfare of the residents of a
State or locality.'' 28 CFR 65.83(b).
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\1\ Although the regulations reference the ``Attorney General,''
Congress has, since the publication of these regulations,
transferred the authority and responsibility for administering and
enforcing the immigration laws to the Secretary of Homeland
Security. See Homeland Security Act of 2002 471, 6 U.S.C. 291
(abolishing the former Immigration and Naturalization Service); id.
S 441, 6 U.S.C. 251 (transferring immigration enforcement functions
from the Department of Justice to the Department of Homeland
Security); Immigration and Nationality Act 103(a)(1), 8 U.S.C.
1103(a)(1) (``the Secretary of Homeland Security shall be charged
with the administration and enforcement of this chapter and all
other laws relating to the immigration and naturalization of
aliens.'')
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In making such a determination, the Secretary may also determine
that there is an ``immigration emergency.'' The regulations define an
immigration emergency as ``an actual or imminent mass influx of aliens
which either is of such magnitude or exhibits such other
characteristics that effective
[[Page 45397]]
administration of the immigration laws of the United States is beyond
the existing capabilities of [the Department of Homeland Security
(DHS)] in the affected area or areas.'' 28 CFR 65.83(d)(1) (using
identical language as 8 U.S.C. 1103(a)(10)).
Such a determination is based on ``the factors set forth in the
definitions contained in'' 28 CFR 65.81. Characteristics of an influx
of aliens, other than magnitude, which may be considered in determining
whether an immigration emergency exists include: the likelihood of
continued growth in the magnitude of the influx; an apparent connection
between the influx and increases in criminal activity; the actual or
imminent imposition of unusual and overwhelming demands on law
enforcement agencies; and other similar characteristics.
Upon review of the current data, I have determined that there
continues to exist circumstances involving the administration of the
immigration laws of the United States that endanger the lives,
property, safety, or welfare of the residents of all 50 States and that
an actual or imminent mass influx of aliens is arriving at the southern
border of the United States and presents urgent circumstances requiring
a continued federal response. I make this finding for the reasons
discussed below.
First, as stated in the January and March 2025 notices, over the
last four years, our southern border has been overrun. As noted in
Proclamation 10,888, Guaranteeing the States Protection Against
Invasion, ``[o]ver the last 4 years, at least 8 million illegal aliens
were encountered along the southern border of the United States, and
countless millions more evaded detection and illegally entered the
United States.'' DHS continues to encounter thousands of aliens on a
weekly basis attempting to enter the United States illegally via the
Southwest border.\2\
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\2\ Nationwide Encounters, U.S. Customs and Border Protection
(last modified Aug 12, 2025), available at https://www.cbp.gov/newsroom/stats/nationwide-encounters.
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Second, at this time, the ability of DHS to control an influx of
aliens at the border has been hampered due to a federal court decision.
On August 1, 2025, the U.S. Court of Appeals for the District of
Columbia Circuit issued a decision partially staying an order from the
U.S. District Court for the District of Columbia enjoining the
implementation of Proclamation 10888, Guaranteeing the States
Protection Against Invasion, 90 FR 8333 (Jan. 20, 2025) (Invasion
Proclamation). See Refugee and Immigrant Center for Education and Legal
Services (RAICES) v. Noem, No. 25-5243 (D.C. Cir. Aug. 1, 2025).
Because of this decision, DHS no longer directly repatriates
apprehended aliens or relies upon expedited removal under INA Sec.
212(f), but rather must process aliens for expedited removal pursuant
to 8 U.S.C. 1225(b)(1). Given that DHS's use of the Invasion
Proclamation, which previously contributed to low border encounters
throughout much of 2025, has been limited, there is a continued need
for a finding of mass influx.
Third, as stated in the previous notices, when border crossing
numbers are high, much detention capacity is required of U.S.
Immigration and Customs Enforcement (ICE). Mandatory detention of
aliens apprehended at the border serves important public safety and
national security purposes. Aliens who have not completed this process
have not been effectively vetted for criminality or national security
threats. Current databases still do not allow for comprehensive and
rapid searching for foreign convictions or other public safety and
national security risks of recent arrivals. As a result, when numbers
at the border are such that DHS is effectively forced to engage in
catch-and-release practices which thwarts legally mandated screenings,
there is a threat to public safety and national security. This does not
account for so-called gotaways, of which there have been millions over
the last four years, who are not screened in any manner.
In addition, increased enforcement efforts in the interior have
resulted in large numbers of aliens in custody. Many of these aliens
are applicants for admission who are subject to mandatory detention
pending removal proceedings under the INA. 8 U.S.C. 1225(b)(2)(A); see
Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) (holding that
immigration judges lack authority to hear bond requests or grant bond
to aliens present in the United States without admission and in removal
proceedings, based on the plain language of 8 U.S.C. 1225(b)(2)(A)).
As mentioned in the prior findings of mass influx, without controls
in place at the border to stem the influx, DHS loses its capacity to
hold all aliens as required by the INA. See, e.g., 8 U.S.C. 1225(b). As
of September 8, 2025, ICE has a detention population of 59,134, with a
maximum capacity of 62,000. ICE's facilities are currently nearly at
95% occupancy, and ICE's priority for detention space is removing
aliens with criminal records, public safety risks, and national
security risks. Similar to the explanation provided in the March 2025
Notice, should this finding not be extended, ICE would be hampered in
this critical effort and be unable to detain a large number of aliens
at the Southwest border despite these aliens being subject to mandatory
detention.
Fourth, an influx of aliens presents significant concerns with
respect to increased criminal activity. Between FY 2017 and 2019, ICE
removed 485,930 aliens with criminal convictions or pending criminal
charges. Between FY 2021 and FY 2023, ICE removed 158,931 aliens with
criminal convictions or pending criminal charges. As of September 8,
2025, with 22 days left in the fiscal year, ICE removed 144,989 aliens
for FY 2025. Assuming that the crime rate of aliens has remained
unchanged over the year, this 67% decrease (in removals) between FY
2019 and 2021 and FY 2021 and 2023 suggests that tens of thousands of
criminal aliens remain in the United States. Where there is an increase
in criminal aliens, there is likely to be an increase in criminal
activity. Although FY 2025 removals are tracking to well outpace the
average for between FY 2021 and FY 2023, the number will still
represent a 40% decrease than the average between FY 2017 and 2019.
This once again shows that ICE needs to continue to prioritize the need
to remove criminal aliens rather than divert resources to detain aliens
recently apprehended at the Southwest border.
Furthermore, there continues to be significant criminality present
at the Southwest border. In August 2025, U.S. Customs and Border
Protection's (CBP's) Office of Field Operations (OFO) and U.S. Border
Patrol (USBP) encountered 364 criminal aliens. OFO made 520 criminal
arrests, and USBP had 34 gang apprehensions. USBP referred 217
smuggling events for prosecution, and OFO referred 232 events for
criminal prosecution. Officers and agents seized 28,082.99 pounds of
illicit narcotics, including 678.53 pounds of deadly fentanyl. Officers
and agents also seized 82 firearms and 4,700 rounds of ammunition, as
well as $1,178,063.86 in currency. These numbers are only likely to
increase if encounter numbers increase.
Fifth, there have been high, unusual, and overwhelming demands on
law enforcement officers and agencies, which continue to present
significant danger to officers and agents. For example, in August 2025,
CBP records indicate that 40 CBP officers/agents were assaulted. Even
while encounter numbers were lower than average in August 2025,
officers and agents at the border have consistent threats against them,
and there are too many assaults and use of force incidents on officers
[[Page 45398]]
and agents. ICE records indicate that aliens assaulted or used force
against 18 ICE Enforcement and Removal Operations (ERO) officers in
August 2025. In February 2025, ICE records indicated that aliens
assaulted or used force against 10 ICE ERO officers. This 80% increase
over six months indicates the increasing risk that ICE ERO officers
face as they seek to arrest and detain aliens that entered during
periods of loose border restrictions.
Additionally, there remains a strain on ICE resources, which takes
ICE away from its mission to preserve national security and public
safety. ICE has many aliens pending removal that entered during prior
influxes at the Southwest border. Managing those removals requires a
significant expenditure of ICE resources. As of September 8, 2025,
there are 1,505,425 aliens on the ICE non-detained docket with final
orders of removal. This number will only increase should this finding
not be extended.
At present, ICE currently has 6,204 ERO Officers, with 9,960
vacancies due to surge hiring from the One Big Beautiful Bill Act,
Public Law 119-21. This represents a 61% vacancy rate for ICE ERO
officers. Although ICE is actively engaging in new hiring, this process
takes time and includes the hiring, onboarding, and training of these
new officers. The current allocation of ICE ERO officers and
prospective new hires is based on the existing number of aliens in the
United States. ICE ERO's efforts to properly enforce immigration on the
interior, even after this hiring surge, will be impacted should the
influx continue at the Southwest border.
Between April 1 and August 31, 2025, ICE arrested 84,215 aliens
with criminal convictions or pending criminal charges, 502 arrested
aliens were known or suspected terrorists, and 2,356 arrested aliens
were suspected gang members. During this period, ICE removed 85,249
aliens with criminal convictions, 561 aliens that were known or
suspected terrorists, and 2,651 suspected gang members. Failure to
extend this finding will impede the ability of ICE to properly enforce
immigration laws and focus on public safety risks.
On the basis of the above facts, I find that these circumstances
continue to endanger the lives, property, safety, and welfare of the
residents of every State in the Union. The only way to effectively
prevent this danger to the States is to maintain operational control of
the border, which Congress defined to mean ``the prevention of all
unlawful entries into the United States, including entries by
terrorists, other unlawful aliens, instruments of terrorism, narcotics,
and other contraband.'' Secure Fence Act of 2006, Public Law 109-367,
2, 120 Stat. 2638 (2006); 8 U.S.C. 1701 note; see also id. (stating
that the Secretary of DHS ``shall take all actions the Secretary
determines necessary and appropriate to achieve and maintain
operational control over the entire international land and maritime
borders of the United States''). Given that Congress directed DHS to
prevent all unlawful entries, the thousands of aliens that DHS
continues to encounter on a weekly basis attempting to enter the United
States illegally via the Southwest border is an influx. Therefore, I
find that there is currently an influx of aliens arriving across our
entire southern border, which requires a federal response.
Accordingly, pursuant to the authorities under the INA, 8 U.S.C.
1101, et seq., including the implementing regulations identified above,
I find ``that there exist circumstances involving the administration of
the immigration laws of the United States that endanger the lives,
property, safety, or welfare of the residents'' of all 50 States. I
further find that an actual or imminent mass influx of aliens is
arriving at the southern border of the United States and presents
urgent circumstances requiring an immediate federal response. I
therefore request the assistance of State and local governments in all
50 States.
The finding is effective immediately and expires in 180 days. This
finding may expire sooner in the event I find that circumstances have
changed. Such a finding would be published in the Federal Register.
Kristi Noem,
Secretary of Homeland Security.
[FR Doc. 2025-18255 Filed 9-19-25; 8:45 am]
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