Border Patrol chief says memo clearing migrant release into US after Title 42 end is unprecedented

By | September 13, 2022

EXCLUSIVE: The head of the Border Patrol stated that an internal U.S. Customs and Border Patrol (CBP) guidance memo from May clearing border agents to release illegal migrants into the interior of the U.S. — in anticipation of a surge at the border if Title 42 is officially terminated — is unprecedented in the 31 years he’s been with the agency.

Ortiz made the comments under oath during a recorded July 28 deposition, first obtained by Fox News Digital, as part of discovery in a lawsuit by Florida Attorney General Ashley Moody against the Department of Homeland Security and other border agencies.

Ortiz is seen on video responding to a series of questions on “Exhibit 3,” an internal Border Patrol emergency memo that the chief signed on May 19, 2022, titled “Noncitizen releases from U.S. Border Patrol Custody.” The emergency memo predicts that border agents would not be able to process and transport large numbers of illegal aliens who would cross the southern border into the U.S. if the Title 42 public health order, which is currently stuck in limbo in court, is repealed.

“This guidance is for situations where U.S. Immigration and Customs Enforcement (ICE)/Enforcement and Removal Operations (ERO) are unable to accept custody of noncitizens due to lack of bed space, such that noncitizens must be released directly from USBP custody to avoid overcrowding and excessive time in custody,” the May 19 memo states.

Counselors for the office of the Florida attorney general asked Ortiz to describe the memo, to which he replied: “It’s a memorandum that I signed on May 19th, 2022, and it discusses the non-citizen releases from our custody.”


The Florida lawyer continued, asking, “In your experience 31 years with the Border Patrol, have you ever seen a document—or have you ever seen a memorandum like Exhibit 3 before?”

Ortiz replied, “No.” 

“Would you agree with me that Exhibit 3 deals with the possible rescission of Title 42?” probed the lawyer.

“Yes,” replied Ortiz.

“And if ICE were either unwilling or unable to accept transfer of aliens, this memo authorizes the sectors to release aliens into the interior of the United States?” continued the attorney.

Ortiz responded: “Well, it authorizes them to release them into the communities that they were apprehended in.”

“And does Exhibit 3 authorize the release of aliens that would otherwise be inadmissible into the United States?” continued the lawyer. 

Ortiz replied in the affirmative, “Yes.”

The CBP previously told Fox News Digital, “As a matter of policy, U.S. Customs and Border Protection generally does not comment on pending litigation.”


Florida’s attorney general is accusing the Biden administration of having only one solution for an increase in mass migration after Title 42 ends – mass releases of illegal migrants into the interior of the U.S.

Moody told Fox News Digital: “The Biden administration’s failed immigration policies are disastrous. Expecting to be overrun, Biden’s Border Patrol drafted a plan to hunker down and allow inadmissible immigrants to flood into the country. But for the efforts of our office and other responsibly minded, public-safety oriented attorneys general, Title 42 would have been repealed and Biden would have released untold thousands of additional immigrants into the interior of our country—outrageous!”

The Department of Homeland Security has said that it has developed a plan for the end of Title 42, while conceding the surge will “substantially strain” resources at the border.

“When the Title 42 public health order is lifted, we anticipate migration levels will increase, as smugglers will seek to take advantage of and profit from vulnerable migrants,” DHS Secretary Alejandro Mayorkas said in a memo outlining the agency’s “plan for Southwest Border Security and Preparedness” from April.

The memo outlines what it calls a “whole-of-government plan to prepare for and manage increased encounters of noncitizens at our Southwest Border.”

More than 2 million migrants have been encountered at the southern border this fiscal year, which ends on Sept. 30.

Also during the deposition, Ortiz was also asked “What is a broken arrow?”

He replied: “Typically, in the context of operations, it is unsustainable operational circumstances. We still had processes in place, and we still expected a majority of the encounters that we were experiencing on the southwest border would be facilitated from us to NGOs, but we also recognize that in a couple locations, that we were going to experience some challenges.”

During the same deposition, Ortiz said President Biden’s border policies have “no consequences” for illegal migrants traveling into the U.S. and are to blame for the unprecedented surge at the border and release of hundreds of thousands into the interior of the country.