Notice2026-19253
Finding of Mass Influx of Aliens
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 21, 2026
Issuing agencies
Homeland Security Department
Full Text
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<title>Federal Register, Volume 91 Issue 181 (Monday, September 21, 2026)</title>
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[Federal Register Volume 91, Number 181 (Monday, September 21, 2026)]
[Notices]
[Pages 59795-59797]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19253]
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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). See 90 FR 8399 (Jan 29, 2025). On March
21, 2025, Secretary Noem extended the January 2025 Finding of Mass
Influx for 180 days (until September 17, 2025). See 90 FR 13,622 (Mar
25, 2025). On September 17, 2025, Secretary Noem extended the March
2025 Finding of Mass Influx for 180 days (until March 21, 2026). See 90
FR 45,396 (Sep 22, 2025). On March 21, 2026, Secretary Noem extended
the September 2025 Finding of Mass Influx for 180 days (until September
17, 2026). See 91 FR 14703. Upon review of the current situation at the
border, I am extending that finding for 180 days.
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 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 discussed in prior notices, for years, our southern
border has been overrun. As noted in Proclamation 10888, Guaranteeing
the States Protection Against Invasion, from 2020 to 2024, ``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 14, 2026), available at <a href="https://www.cbp.gov/newsroom/stats/nationwide-encounters">https://www.cbp.gov/newsroom/stats/nationwide-encounters</a>.
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Second, the ability of DHS to control an influx of aliens at the
border
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continues to be 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).
However, the district court's holding that DHS can no longer
directly repatriate apprehended aliens under INA 212(f) but rather must
process aliens for expedited removal pursuant to 8 U.S.C. 1225(b)(1),
remains in effect.\3\ Therefore, because of this decision, DHS's
implementation of the Invasion Proclamation is still limited. Prior to
the court's decision, the Invasion Proclamation disincentivized illegal
immigration and contributed to low border encounters throughout much of
2025. As the court's decision is still effective, the concern remains
regarding agency resources available to address a mass influx, thereby
warranting continued need for a finding of mass influx.
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\3\ In April 2026, a merits panel of the D.C. Circuit upheld the
district court's decision. RAICES v. Mullin, 174 F.4th 81 (D.C. Cir.
2026).
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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. Specifically, mandatory detention allows
the government to effectively vet aliens for criminality or national
security threats and ensure that such aliens are not released into the
community. 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 thwart appropriate vetting, 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
several 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
detain all applicants for admission as required by the INA. See, e.g.,
8 U.S.C. 1225(b). As of August 12, 2026, ICE has a detention population
of 67,022 with a maximum capacity of 80,700. ICE's facilities are
currently at 83% occupancy. Similar to the explanation provided in the
March and September 2025 Notices and the March 2026 notice, should this
finding not be extended, ICE would face operational constraints and be
unable to detain a large number of aliens at the Southwest border
despite these aliens being subject to mandatory detention.
Additionally, should this finding not be extended, ICE would be
required to use bed space to detain some aliens apprehended at the
Southwest border at the expense of its interior enforcement priorities,
which are designed to enhance and promote public safety.
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. In FY 2025, from
October 1, 2024, to September 30, 2025, ICE removed 166,319 aliens with
criminal convictions or pending criminal charges. Between October 1,
2025, and August 11, 2026, with 51 days remaining in FY 2026, ICE
removed 215,447 aliens with criminal convictions or pending criminal
charges. Assuming the crime rate among 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. However, even if ICE were to continue to
remove aliens at the same levels through the rest of this fiscal year,
it would still fall short of the total number of aliens removed with
criminal convictions or pending criminal charges between FY 2017 and FY
2019, indicating the large, continued presence of criminal aliens in
the United States. Where there is an increase in criminal aliens, there
is likely to be an increase in criminal activity. This once again shows
that ICE must continue to prioritize the removal of 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 July 2026, U.S. Customs and Border
Protection's (CBP's) Office of Field Operations (OFO) and U.S. Border
Patrol (USBP) encountered 353 criminal aliens. OFO made 750 criminal
arrests, and USBP had 33 gang apprehensions. USBP referred 344
smuggling events for prosecution, and OFO referred 347 events for
criminal prosecution. Officers and agents seized 24,996.19 pounds of
illicit narcotics, including 969.57 pounds of deadly fentanyl. Officers
and agents also seized 77 firearms and 11,652 rounds of ammunition, as
well as $859,890.84 in currency. If such significant criminality has
been observed even when illegal border crossings are low, these numbers
are only likely to increase if border crossings increase and CBP's
resources are further stretched.
Fifth, there have been high, unusual, and overwhelming demands on
law enforcement officers and agents, which continue to present
significant danger to those personnel. For example, in July 2026, CBP
records indicate that 22 CBP officers/agents were assaulted. Even while
encounter numbers in July 2026 were significantly lower than monthly
encounter numbers in previous years, officers and agents at the border
still have consistent threats against them, and there are still too
many assaults and use of force incidents on officers and agents. ICE
records indicate that aliens assaulted or used force against 231 ICE
Enforcement and Removal Operations (ERO) officers from February 2026 to
the end of July 2026, representing an average of 38.5 per month. In
February 2025, ICE records indicated that aliens assaulted or used
force against 10 ICE ERO officers. This 385% increase from February
2025 as well as a continued upward trend 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 August 11, 2026, there
are 2,120,058 aliens on the ICE non-detained docket with final orders
of
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removal. Should the finding not be extended, and more aliens placed on
the non-detained docket, this number would only continue to increase.
Between March 1, 2026, and August 11, 2026, ICE arrested 214,992
aliens. Of those, 121,055 aliens had criminal convictions or pending
criminal charges, 452 were known or suspected terrorists, and 2,700
were 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 (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.
Markwayne Mullin,
Secretary of Homeland Security.
[FR Doc. 2026-19253 Filed 9-18-26; 8:45 am]
BILLING CODE 9112-FP-P
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</html>Indexed from Federal Register on September 21, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.