Fox News is an easy target, but when overrated billionaires like Elon Musk share it as a credible source, that is when it becomes truly troublesome.

In his article, Pandolfo explains that the numbers Fox used to conduct their analysis were derived from the federal government’s reporting of border encounters:

That figure comes from US Customs and Border Protection, which has already reported 961,537 border encounters in the current fiscal year, which runs from October through September. If the current pace of illegal immigration does not slow down, fiscal year 2024 will break last year’s record of 2,475,669 southwest border encounters—a number that by itself exceeds the population of New Mexico, a border state.

But this is extremely misleading: CBP “encounters” are not a tally of how many people were able to enter the country without authorization; it’s a count of how many times people were stopped at the border by CBP agents. Many of these people had every right to seek entry, and a great number were turned away. Some of them were stopped more than once, and therefore were counted multiple times.

Indeed, of Fox’s 7.3 million total, roughly 2.5 million were released into the country; the rest were turned back or placed in detention centers. A majority of those 2.5 million were families, and not all of them will stay long-term; these are simply the migrants who will have an opportunity to have their cases heard.

Border patrol categories

The CBP calculates its border encounter number by adding together three categories: Title 8 apprehensions, Title 8 inadmissibles, and—through May 2023—Title 42 expulsions (NPR, 5/11/23).

Title 8 inadmissibles are people who present themselves at a port of entry without authorization to enter, i.e., without a visa; those who withdraw their application to enter and voluntarily leave; and those who attempt to enter legally but are determined by border agents to be inadmissible due to a range of reasons, including previous immigration infractions, a criminal background, lack of immunization, etc.

Title 8 apprehensions refer to people who are caught crossing the border without authorization, and are taken into custody by border patrol agents. Collectively, Title 8 encounters made up approximately 4.8 million of Fox’s 7.3 million number.

Both of these categories include many migrants seeking humanitarian protection. Migrants have a legal right to request asylum at a port of entry, so including these in a calculation of “illegal” crossings is not journalism but propaganda.

Migrants falling into the category of Title 8 encounters have the option of requesting a court hearing to have an immigration judge decide their fate—which results in them either being held in detention or allowed limited release into the country as they await their hearing. The number who will ultimately be allowed to stay long-term is nearly impossible to determine, as cases can take years to resolve.

Finally, Title 42 expulsions—derived from a 1944 public health law that allows curbs on migration in the interest of public health (AP, 5/12/23)—refers to migrants who were turned away during the Covid pandemic without being allowed to file for asylum. The policy, instituted by President Donald Trump in March 2020, continued well into the Biden administration (FAIR.org, 4/22/22). Biden declared an end to the Covid emergency in April 2023 (NPR, 4/11/23), resulting in an end to Title 42–based border restrictions the following month. These expulsions made up the remaining approximately 2.5 million CBP encounters over the course of the Biden administration.

Because these expulsions did not, unlike deportations, come with legal consequences for reentry, Title 42 produced a great many repeat attempts at crossing the border, inflating the totals. For instance, in the first nine months of the 2022 fiscal year, almost a quarter of the 1.7 million encounters reported by CBP were individuals who had already been stopped (Cronkite News, 7/18/22).

(Emphasis original.)