Adam Isacson

With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here. 

Supreme Court fails to block judge’s demand to reinstate “Remain in Mexico”

A Supreme Court decision issued the evening of August 24 leaves in effect a district court order for the Biden administration to reinstate the Trump administration’s Migrant Protection Protocols (MPP), or “Remain in Mexico,” program. Between its December 2018 inception and January 2021, whenever asylum seekers from several Spanish or Portuguese-speaking countries arrived at the U.S.-Mexico border, this program forced them to spend months or years in Mexican border towns—with no guarantees of housing, sustenance, or security—to await their hearings in U.S. immigration courts. (Read WOLA’s statement warning of this potential “return to an inhumane and unlawful policy.”)

Remain in Mexico forced 71,038 asylum seekers back across the border. Mexico’s government, under intense pressure from the Trump administration, went along with the program, including a sharp mid-2019 expansion.

Remain in Mexico spurred the creation of unsanitary and unsafe encampments in Mexican border cities. Human Rights First documented at least 1,544 cases of rape, kidnapping, torture, and other crimes against those subject to the program inside Mexico. If their cases even reached U.S. immigration court, difficult access to counsel and rushed, often virtual procedures made asylum all but impossible to obtain. Of the more than 15,000 closed cases for which asylum seekers attended all their hearings while remaining in Mexico, only 720—4.7 percent—were granted any form of relief from deportation.

“Donald Trump’s ‘Remain in Mexico’ policy is dangerous, inhumane, and goes against everything we stand for as a nation of immigrants,” then-candidate Joe Biden tweeted in March 2020. “My administration will end it.” The Biden administration suspended Remain in Mexico with an order on January 20, 2021, and then formally terminated it on June 1. Now, though, federal courts are ordering “a good-faith effort” to restart the controversial program, at least while appeals proceed.

The action stems from a lawsuit filed by the Republican attorneys-general of Texas and Missouri, who alleged that the Biden administration failed to “consider all relevant factors” in terminating Remain in Mexico. They link the program’s end to an increase in migration this year, which they claim has increased financial costs for both states.

On August 13, Amarillo, Texas District Court Judge Matthew Kacsmaryk agreed with the attorneys-general and ordered the Biden administration to restart Remain in Mexico, giving it a week to do so. Kacsmaryk is a Trump appointee. (Ian Milhiser reports at Vox that “Before Trump made Kacsmaryk a judge, Kacsmaryk worked at a religious-right law firm. He’s previously written that being transgender is a ‘mental disorder’ and that gay people are ‘disordered.’”)

His opinion claimed that a 1996 immigration law only gives “the government two options vis-à-vis aliens seeking asylum: (1) mandatory detention; or (2) return to a contiguous territory.” This is flatly incorrect: immigration law offers federal officials other options including parole, release on bond, and alternatives to detention.

Kacsmaryk, Milhiser observes, also effectively claimed that the 1996 law “required the federal government to implement the Remain in Mexico policy permanently. That policy didn’t even exist until 2019, so the upshot of Kacsmaryk’s opinion is that the government violated the law for nearly a quarter-century and no one noticed.”

The Department of Justice (DOJ) asked for a stay of Kacsmaryk’s decision while appeals proceed. A panel of three Trump-appointed judges from the New Orleans-based Fifth Circuit denied that request on August 19. DOJ then went to the Supreme Court, which suspended the Remain in Mexico reinstatement until August 24.

That evening, with its three liberal-leaning judges dissenting, the Supreme Court refused to suspend Kacsmaryk’s decision while litigation continues. (While it didn’t offer a reason for its refusal, the Court cited a 5-4 decision in 2020 that blocked then-president Donald Trump’s repeal of the Obama administration’s Deferred Action for Child Arrivals (DACA) program.) Remain in Mexico—or, at least, good-faith efforts to reinstate it—have thus officially gone back into effect as of 12:01 a.m. August 25.

After suspending it, the Biden administration had endeavored to admit many of those subject to the program into the United States to await their immigration court proceedings. About 13,000 of the 71,000 Remain in Mexico victims entered through a process managed with cooperation from the UN Refugee Agency (UNHCR)  and the International Organization for Migration (IOM). That process has now been suspended—those awaiting their turn to enter the United States must now stay in Mexico—and the website for new registrations has been shut down.

What happens now isn’t entirely clear. The district court’s ruling requires the Biden administration to make a “good faith effort” to restart Remain in Mexico, but neither it nor the Supreme Court define what that means. While expressing “respectful disagreement” with the courts’ decisions and pressing its appeals, the Department of Homeland Security (DHS) stated that it “will comply with the order in good faith,” adding that it “has begun to engage with the Government of Mexico in diplomatic discussions.” White House Press Secretary Jen Psaki reiterated that on August 25.

While the administration “vigorously” pursues its appeals, one possible next step would be for DHS to “re-terminate” the program with a fuller explanation of the reasoning behind its decision to do so. That is a step that the ACLU recommends. “In theory, that’s a solvable problem,” Milhiser writes. “Except that the Supreme Court does not even offer a hint as to why it deemed the Biden administration’s original explanation insufficient.”

There is also concern that the administration might seek to create a “lite” version of Remain in Mexico. The administration “could reimplement it on a very small scale for families who meet certain criteria from very specific nationalities,” Jessica Bolter of the Migration Policy Institute suggested to the Associated Press. “Shockingly,” reads a statement from Human Rights First, “the administration is reportedly considering launching a ‘gentler’ version of the inherently unfixable policy—an exercise doomed to fail given the policy’s illegality and pervasive violence against asylum seekers in Mexico.”

Even that, though, depends on concurrence from the government of Mexico, which must consent to the possible introduction of tens of thousands more non-Mexican asylum-seekers on its soil. Remain in Mexico would not begin again if Mexico were to say “no.” An August 23 letter to Mexican President Andrés Manuel López Obrador from more than 74 international NGOs, including WOLA, calls on him to do just that. “As a sovereign nation, Mexico has the right to reject the reinstatement of MPP or any future iteration of this policy that aims to externalize the U.S. border into Mexican territory. It is impossible to re-implement MPP in a way that upholds human rights and due process, and Mexico has the responsibility to block this detrimental policy.”

So far, Mexico hasn’t clearly indicated how it will respond. Roberto Velasco, the director for North American affairs in Mexico’s Foreign Relations Department, made clear that the U.S. courts’ rulings don’t compel Mexico to do anything. He added, though, that “the Mexican government will start technical discussions with the U.S. government to evaluate how to handle safe, orderly and regulated immigration on the border.” At his morning press conference on August 26, President López Obrador said Mexico wants to “help,” but sought to shift the conversation to efforts to address the economic causes of Central American migration. The president rejected as “conservative” those who argue that such “root-causes” strategies are long-term in nature, and don’t address the present suffering of migrants stranded in Mexico’s border cities.

Title 42 expulsions continue, including flights to southern Mexico

Regardless of next steps for Remain in Mexico, we should recall that the Trump administration did not employ the program heavily after March 2020, when pandemic border restrictions went into effect. Of the 71,000 people enrolled in the program, only 6,153 were added between April 2020 and January 2021.

That is mainly because after March 2020, the Trump and Biden administrations had a new way to expel non-Mexican migrants into Mexico. Since COVID-19 pandemic border restrictions began, authorities have employed a public health provision called “Title 42” to expel migrants rapidly, usually without an opportunity to ask for asylum or protection in the United States. Mexico takes back its own citizens and citizens of other countries with some migratory status inside Mexico, and agreed in March 2020 to accept expelled citizens of El Salvador, Guatemala, and Honduras.

Between March 2020 and July 2021, U.S. authorities have used Title 42 to expel migrants at the southern border 1,069,777 times. 431,662 of those times, the expelled migrants were not Mexican. (Several thousand of this number were expelled by air to their home countries, not by land into Mexico.) These numbers dwarf the 71,000 who were subjected to Remain in Mexico.

With Title 42 allowing it to expel them into Mexico, the Trump administration almost completely stopped applying “Remain in Mexico” to Salvadorans, Guatemalans, and Hondurans. The 6,153 people enrolled in the program during the Trump administration’s last 10 months were almost entirely citizens of 6 Spanish and Portuguese-speaking countries to which expulsions are difficult: Brazil, Colombia, Cuba, Ecuador, Nicaragua, and Venezuela.

Even as it ended Remain in Mexico, the Biden administration has energetically continued to expel people under Title 42: 610,208 expulsions, including 76,384 parents and children, between February and July. Because it is hard to expel them, though, the Biden administration has processed into the United States many citizens of the six countries that were subject to Remain in Mexico during the Trump administration’s pandemic tenure.

A two-tier system has resulted. Between February and July:

• Citizens of El Salvador, Guatemala, and Honduras were expelled, under Title 42, 54 percent of the time. If traveling as families, they were expelled 34 percent of the time.
• Citizens of Brazil, Colombia, Cuba, Ecuador, Nicaragua, and Venezuela were expelled 22 percent of the time. If traveling as families, they were expelled 4 percent of the time.

Citizens of most of these six countries have been arriving in greater numbers since February. By July, increases in citizens of Ecuador and Nicaragua had pushed El Salvador into sixth place among arriving migrants. This was quite possibly the first time El Salvador has ranked so low, even though arrivals of its citizens did increase from June to July.

If Remain in Mexico is reinstated, citizens of the six countries might find themselves pushed back into Mexican border towns again. However,  they would at least have hearing dates in U.S. immigration courts, while Title 42 persists they would still be better off than the Salvadorans, Guatemalans, and Hondurans being expelled without even a chance to ask for asylum.

On August 25 Human Rights First published a major update of its running series of reports documenting abuses committed against migrants after their expulsion into Mexican border towns. By gathering information from interviews and local organizations’ surveys and databases, the group has now “tracked at least 6,356 kidnappings, sexual assaults, and other violent attacks against people blocked at ports of entry or expelled to Mexico”—just in the months since President Biden took office. Of migrants participating in the surveys who identified as LGBTQ, a stunning 89 percent reported suffering recent attacks or threats while in northern Mexico.

Two encampments made up of expelled or blocked migrants continue to grow. One is in a public square near the border crossing in Reynosa, Tamaulipas, a city plagued by violence. Recent press estimates of the population subsisting there range from “more than 2,000” to “at least 2,500” to “over 5,000.” A similarly sized encampment sits outside the Chaparral port of entry in Tijuana.

The New York Times describes the Reynosa camp as “filthy and foul-smelling, lacking the health and sanitation infrastructure that nonprofit groups had spent months installing” in an earlier, now-demolished camp for Remain in Mexico victims in the nearby border city of Matamoros. “Assaults and kidnappings for ransom are commonplace.” Several people interviewed there “said that they had tried to make a case for asylum to U.S. Border Patrol agents, but that the agents would not listen. They were told, they said, to just answer questions and follow directions,” and were bused back to Mexico.

Several non-governmental groups are seeking to raise money for a facility to shelter roughly 400 COVID-positive migrants so that they might at least be able to leave the camp while they recover. Meanwhile, Reynosa’s municipal government—which recently sought to close down the city’s largest church-run migrant shelter—ordered the confiscation of gas cylinders that migrants in the camp were using to cook food, citing safety concerns. The migrants now depend more heavily on charitable food donations.

The U.S. government is offering no support. To the contrary: unnamed sources told Reuters that U.S. officials are urging Mexico to clear the encampments, “in part because the sheer volume of people in them could jeopardize security if they made a sudden rush for the border.”

In some cases, the U.S. government is seeking to move migrants even further from the border: since sometime in early August, DHS began expelling some Central American migrants via aircraft to two cities in southern Mexico—Tapachula, Chiapas, and Villahermosa, Tabasco—a relatively short drive from the Guatemalan border. From those cities’ airports, Mexican authorities have been busing migrants to border crossings and escorting them into Guatemala. The migrants are given no opportunity to ask for asylum in either country.

Guatemala has voiced particular concern about expulsions into the tiny border town of El Ceibo, in the country’s remote, sparsely populated, and organized crime-influenced northern department of Petén, which borders Tabasco, Mexico. Guatemala only authorizes, and has facilities to handle, deportees at one border crossing site hundreds of miles away, in the Pacific-zone border town of Tecún Umán. Very few services exist in El Ceibo, where Guatemala’s Migration Institute (IGM) on August 24 estimated that Mexico had dropped off 500 Central American migrants in the previous 3 days.

August migration may be declining somewhat

In July 2021, U.S. Customs and Border Protection (CBP) reported taking 154,288 migrants into custody at the U.S.-Mexico border through 212,672 separate “encounters,” a term that includes many repeat crossings. This was the largest number all year, and one of the largest monthly totals in this century.

Some indicators, however, point to at least a modestly lighter flow of migrant arrivals in August. Daily reports (available here as a 12MB zipfile) show a decline over the month of August in arrivals of unaccompanied migrant children at the border, after a sharp increase in July. During the last two weeks of July, an average of more than 500 children per day were entering CBP custody at the border, and more than 600 per day the first week of August. This has dropped to 424 per day during the week of August 15 and 469 per day so far this week.

In Texas’s Rio Grande Valley, the sector that receives by far the largest number of migrants, especially children and families from Central America, numbers also appear to be dropping. myRGV.com reports:

Assistant City Manager Jeff Johnston reported that the numbers were down significantly last week.

“Back on Aug. 9, we reported an all-time high of 11,026 immigrants dropped off by Customs and Border Protection that week here in McAllen. That was an average of about 1,575 per day,” Johnston told city commissioners during Monday’s meeting. “This last week, our numbers were down quite a bit from that, in fact down by over 40%. We had 6,320 drop-offs this last week for an average of about 900 per day.”

COVID-19 positivity rates among asylum seekers in the Rio Grande Valley were also down “from about 15 percent two weeks ago to approximately 12 percent this week.”

Links

• During Fiscal Year 2021 so far (October through July), Border Patrol has found the remains of 383 migrants on U.S. soil near the U.S.-Mexico border, the New York Times reports. Most died of dehydration, exposure, or drowning. That is more remains than Border Patrol has found in any full year since 2013 (451); with two months to go, 2021 is already the sixth-worst year since 1998, when Border Patrol’s records begin. CBP reports finding more than 100 remains of migrants just in the Rio Grande Valley sector, “on rugged ranch lands in south Texas,” adding, “Last week alone, 10 decedents were discovered on the ranch lands. This month, more than 20 people have lost their lives during smuggling attempts.”
• Mexican officials assert that seven out of every ten Ecuadorians traveling to Mexico in recent months have ended up apprehended by U.S. Border Patrol near the U.S.-Mexico border. Mexico is tightening visa requirements for Ecuador’s citizens, after easing them in 2018.
• Because it wants cooperation on limiting migration, the Biden administration has not been following up officials’ tough anti-corruption talk with action against Central American government officials, a New York Times analysis asserts. The piece leads with the scoop that shortly before being fired and forced into exile, Guatemala’s top anti-corruption prosecutor had a witness tell him of going to President Alejandro Giammattei’s home and delivering “a rolled-up carpet stuffed with cash.”
• As environmental advocates had warned would happen, monsoon rains in Arizona’s desert caused flash flooding that blew recently built border wall segments’ gates right off of their hinges.
• Texas Governor Greg Abbott (R) has now sent about 1,000 National Guardsmen to the border with Mexico, with more than 60 of them tasked with building “temporary barriers in key areas.” These state-funded troops are in addition to about 3,800 soldiers and guardsmen whom the Trump administration sent to the border to support CBP, a deployment that the Biden administration has continued. Abbott’s move has pulled National Guard personnel away from the role they were playing in manning El Paso’s only food bank during the pandemic, forcing it to close most of its locations, at least temporarily. The governor has charged police and guardsmen with arresting undocumented migrants near the border on state charges, nearly always trespassing. As of August 25 Texas was holding 486 migrants in a prison in the town of Dilley, and is considering using a second facility in Edinburg, in the Rio Grande Valley. By a 14-8 vote, the Texas House’s Appropriations Committee approved $2 billion on August 24 to pay for Abbott’s crackdown.
• “Most public-health experts say it isn’t likely that migrants are contributing significantly to [COVID-19] transmissions within the U.S., since nearly all are tested and quarantined before release, and because the Delta variant is already widespread,” reads a Wall Street Journal analysis. “Think about an entire city on fire and I was to walk in and drop a match,” said one epidemiologist.
• Sen. Marco Rubio (R-Florida) and other voices on the U.S. right are alleging that the rapid Taliban takeover of Afghanistan, which included a mass prison release, may lead to terrorists seeking to enter the United States via the border with Mexico.
• Large numbers of Haitian migrants are stuck in Mexico’s border zone near Guatemala, where they must await decisions from Mexico’s refugee agency, COMAR, on their asylum cases. They are urging COMAR to adjudicate more quickly. Activists tell Chiapas Paralelo that their numbers in the border zone could be as high as 30,000, with another 15,000 en route, currently in Colombia and Panama. (The actual number may be smaller.)
• Intense fighting between the Jalisco cartel and local organized-crime groups, with almost no government intervention, has displaced thousands from the town of Aguililla, in Mexico’s Pacific state of Michoacán. Many families are trying to seek asylum at the U.S.-Mexico border, Vice reports.
• August 24 marked the 11th anniversary of an infamous massacre of 72 migrants from at least 6 countries in San Fernando, near the Texas border in Tamaulipas, Mexico. Nobody has ever been sentenced for the crime.

With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here. 

We will not publish updates on August 13 and 20, but look forward to resuming on August 27.

Preliminary data point to 210,000 migrant encounters in July

David Shahoulian, the Department for Homeland Security’s (DHS) assistant secretary for border and immigration policy, submitted an August 2 declaration as part of ongoing litigation (discussed below) regarding expulsions of asylum-seeking migrants. Shahoulian’s document offers a preview of official data about migration at the border in the month of July, which Customs and Border Protection (CBP) has not yet released.

Some highlights:

• CBP is likely to have encountered about 210,000 undocumented migrants at the U.S.-Mexico border in July.

This would be the largest number of times that U.S. border authorities have encountered migrants since March 2000, when Border Patrol reported 220,063 apprehensions, and the third-largest on Border Patrol’s reporting of all monthly totals since 2000. This chart shows approximately how July would compare to all months since October 2011:

There is much double-counting, though: repeat crossings are far more common now than in 2000, since pandemic expulsions ease repeated attempts. As a result, the number of individual people whom CBP is encountering is probably in the low-to-mid 100,000s. That is still high, but probably not even in the top ten monthly totals of the past 22 years.

Still, it is extraordinarily unusual for a hot month of July to exceed migration levels measured in spring. Long-standing seasonal patterns no longer apply. As a new WOLA analysis points out, the number may keep increasing, as family and child migration patterns in place since 2014 have been heightened by the pandemic’s impact on governance and economies throughout the hemisphere. “Based on current trends,” Shahoulian’s document reads, “the Department expects that total encounters this fiscal year are likely to be the highest ever recorded.”

• “July also likely included a record number of unaccompanied child encounters, exceeding 19,000.”

Numbers of unaccompanied children arriving at the border had been inching upward since May, but jumped approximately after the July 4 holiday, for unclear reasons. On August 4, Border Patrol reported taking into custody a remarkable 834 non-Mexican children who arrived at the border unaccompanied. That is the largest single-day number in all daily reports on unaccompanied children that CBP and the Department of Health and Human Services (HHS) have produced since March 24, and may be the largest daily number ever.

Along with the increase in child arrivals has come an increase, once again, in the number of unaccompanied children in Border Patrol custody, in the agency’s jail-like holding cells and processing facilities. A smoother process of handoffs to HHS, which runs a network of shelters as it works to place children with U.S.-based relatives or sponsors, had reduced numbers in Border Patrol custody from more than 5,000 in March to fewer than 1,000 in May and most of June. The volume of new arrivals, though, has caused the number to climb again.

As of August 4, 2,784 children were in Border Patrol facilities. Reuters reported on August 3 that, according to an unnamed “source familiar with the matter,” unaccompanied children were spending about 60 hours in Border Patrol custody, just under the legal limit of 72 hours for handoff to HHS. However, Reuters added that as of August 3, 877 kids had exceeded the 72-hour threshold.

• July encounters with family unit members are cited either as “over 75,000” or “around 80,000.”

This number of family members—which, like children, includes few repeat crossers—would be second only to May 2019, when Border Patrol apprehended 84,486.

• Two of the nine sectors into which Border Patrol divides the border “experienced a disproportionate amount of these encounters.”

They are both in Texas: the Rio Grande Valley, the easternmost part of the border; and Del Rio, in the central part of Texas’s border with Mexico, across from Coahuila, Mexico. “These two sectors have also experienced a disproportionate amount—about 71 percent—of family encounters.”

• As of August 1, Border Patrol facilities were at 389 percent of their “COVID-19 adjusted capacity,” with 17,778 non-citizens, including 2,233 unaccompanied children, in the agency’s custody.

10,002 of them were in the Rio Grande Valley sector, 3,623 of them in a temporary processing facility in Donna, Texas, which has a normal (non-COVID) operating capacity of 1,625. “Border Patrol was over capacity in seven of its nine southwest border sectors.”

Images posted on social media by Rep. Henry Cuellar (D-Texas) and a Border Patrol union leader showed large numbers of migrants, including families with children, being held under bridges, outdoors, for days. These are Border Patrol’s Temporary Outdoor Processing Site (TOPS) under the Anzalduas International Bridge in Mission, Texas, and the Del Rio International International Bridge in Del Rio, Texas.

In the Rio Grande Valley, about 800 migrants, mostly asylum-seeking family members, are being brought each day to the Catholic Charities humanitarian respite center in downtown McAllen. “The center struggles every day to have enough supplies and donations to meet the growing demand,” reports Border Report, adding that the facility’s air conditioning broke down over the July 31-August 1 weekend “and temperatures were in the triple digits.”

Northbound migration becomes more visible in Colombia

Colombia sits along a route long used by migrants moving northbound from South America, often via countries like Ecuador or Brazil that are relatively more open to travelers from outside the continent. In its northwest corner, though, there is a major bottleneck: the Pan-American highway does not cross the Darién Gap, an area of dense jungle between the Colombian border and central Panama.

“Before the pandemic,” notes the Bogotá daily El Espectador, “Colombia issued a safe-conduct so that migrants could transit through national territory and leave within 30 days, but with the [pandemic border] closure, it stopped issuing them.” Although Colombia reopened its borders in May 2021, the safe-conduct system “has not resumed.”

Most international migrants transit Colombia with the aim of reaching the Atlantic coast town of Capurganá, which borders Panama. From there, they walk through the Darién Gap—a part of the journey to the United States that many migrants recall as the most miserable and dangerous—until they end up at facilities run by the Panamanian government and humanitarian groups on the other side. From there, they travel through Central America and either seek asylum in Mexico or seek to reach the U.S. border.

Capurganá is poorly served by roads, though, so migrants usually take a 40-mile ferry across the Gulf of Urabá, an inlet of the Caribbean Sea, from Necoclí. This municipality of 45,000 is part of Antioquia department, of which Medellín is the capital. A stronghold of pro-government paramilitary groups during the worst years of Colombia’s armed conflict 20 years ago, Necoclí remains under the influence of the Gulf Clan, an organized crime syndicate descended from the paramilitaries.

As migration surges throughout the Americas, the bottleneck in Necoclí has become dramatically backed up. About 10,000 migrants from Haiti and several other countries are in the beachfront town waiting for a chance to board one of the 12 daily ferries to Capurganá. The town’s only ferry company “simply cannot match demand,” Agence France Presse (AFP) reports; a translator for the company told CNN they “try to move eight or nine hundred migrants per day, but it’s hard.” This backup is forcing migrants to spend many days in Necoclí.

Colombian Defense Minister, visiting the town on July 31, said that the country’s navy would build an emergency pier that would allow more boats to operate. President Iván Duque pledged to work more closely with Panamanian authorities.

Most of the Haitian migrants stranded in Necoclí left Haiti years ago and settled in South America, often in Brazil or Chile. The pandemic dried up employment opportunities in these countries, though, and “they say their visas were not renewed,” reports AFP. Colombian migration authorities told CNN that Haitians are more likely to attempt the Darién route in family units with children.

The stay is expensive: a Haitian man told AFP that he “paid US$105 to enter Colombia illegally from Ecuador, another US$200 for a four-day bus ride to Necocli, and more still to pay police bribes,” and that a room in Necoclí costs US$10 per person. “Some migrants denounced mafias that sell them ‘tourist packages’ to make the journey from Ipiales, in Nariño [where the Pan-American Highway crosses from Ecuador to Colombia], charging up to 300 dollars to cross the border,” said Colombia’s human rights ombudsman, who visited Necoclí.

During the week, Colombia reported two apprehensions of migrant groups along the Pan-American Highway in the country’s southwest, several hundred miles south of Necoclí. Police stopped two buses carrying 99 Haitians in the Andean highlands of rural Nariño, and a vehicle carrying seven Haitians and a Brazilian in Valle del Cauca, not far from Cali.

12 developments last week affecting asylum seekers

As their numbers increase, the situation of asylum seekers in the United States and Mexico grew more complicated in several ways last week, though there was progress on some fronts. There is so much to report that this section avoids going into detail; follow links to learn more.

1. U.S. District Judge Kathleen Cardone granted a temporary restraining order blocking a July 28 executive order from Texas Governor Greg Abbott (R). Abbot would have required Texas state police, in the name of preventing COVID spread, to stop, divert, and even impound vehicles transporting migrants—mainly asylum-seekers—released from CBP custody. The order would have crippled humanitarian groups’ efforts, and the Justice Department, which sued to challenge Abbott’s order on July 30, included statements from Border Patrol and Immigration and Customs Enforcement (ICE) officials contending that the order would block contractors hired to transport migrants. (In the Rio Grande Valley alone, Border Patrol has used contractors to transport most of 100,700 released migrants in Fiscal 2021, according to Sector Chief Brian Hastings’ filing.) Judge Cardone said Abbott’s order would end up “exacerbating the spread of COVID-19.” Her restraining order expires on August 13, when a new hearing is scheduled.
   
   In addition to the Justice Department action, the ACLU and several other Texas organizations filed suit against Abbott’s order on August 5. While the Justice Department is focused on the government’s ability to transport migrants, the organizations’ suit focuses on the racial profiling and other harms that might result from the order.
   
   Governor Abbott meanwhile continues to oversee a state effort to arrest, charge, and jail undocumented migrants on charges of trespassing near the border. According to Texas Tribune reporter Jolie McCullough, who has done the closest monitoring of this operation, more than 150 migrants are now jailed at a Texas prison in the town of Dilley, with the first arraignments scheduled for August 11. On July 30, McCullough witnessed Texas police separating a Venezuelan husband and wife, taking the husband off to jail as a “visibly confused” Border Patrol agent looked on.
   
2. The Centers for Disease Control and Prevention (CDC) issued a new order on August 2 renewing the controversial “Title 42” authority to quickly expel migrants, including asylum seekers, in the name of preventing COVID-19 spread. The order does not apply to unaccompanied children, but families will still be subject to expulsion, despite expectations a month ago that the Biden administration would no longer apply Title 42 to families.
   
   “Processing a family under Title 42 typically takes 10 to 15 minutes and is largely conducted outdoors, while processing a family for Title 8 can take 1.5 to 3 hours and is generally conducted indoors,” according to the above-cited filing by DHS’s Shahoulian. The document was part of the Biden administration’s defense to ACLU-led litigation against Title 42’s application to families. Negotiations between the ACLU and the government collapsed upon notice that the CDC would issue its renewal order, and both parties made a joint filing in Washington, DC district court on August 2.
   
3. The renewal of Title 42, and of litigation, spells an end to two arrangements that were allowing a few hundred expelled asylum seekers per day judged “most vulnerable” to re-enter from Mexican border towns and be processed within the United States. The so-called Huisha-Huisha and Consortium processes were temporary arrangements that placed non-governmental organizations in the role of determining who was most vulnerable. They allowed over 16,000 individuals to be processed in the United States since May. Now, they are taking no new entrants.
   
4. Mexico’s refugee agency COMAR revealed that, as of July 31, it had accepted 64,378 asylum applications so far in 2021. In August, less than two-thirds of the way into the year, the Mexican agency is likely to break its annual record for asylum applications of 70,405, set in 2019. While applicants come from 97 countries, 41 percent are Honduran, 21 percent are Haitian, and 10 percent are Cuban. For a week, COMAR closed its busiest office, in Mexico’s southern border zone town of Tapachula, Chiapas, for pandemic-related deep cleaning. When it reopened on August 5, hundreds of migrants gathered outside and local authorities deployed the National Guard when the crowd became unruly.
   
5. The Rio Grande Valley Monitor reported, and the Washington Examiner added more detail, about Mexico (or at least, many Mexican states) possibly refusing expulsions of non-Mexican families whom CBP encounters at other parts of the U.S.-Mexico border. This step may already have been reversed by subsequent dialogues between U.S. and Mexican officials. But if it were to take place—which seems unlikely at the moment—it would put a halt to “lateral” expulsions, for instance where CBP takes a family into custody in a busy sector and transports them to a quieter sector for expulsion into Mexico. Neither the U.S. nor the Mexican federal government has confirmed the change.
   
6. DHS announced on July 30 that it carried out its first “expedited removal” flight, returning family members to Central America who had either failed a credible fear screening or did not express fear of return to CBP personnel. The flight had a capacity of 147, but only 73 were family members because many had tested positive for COVID or been exposed to an infected person, the Washington Post found. As noted in last week’s update, the Biden administration announced that it would resume expedited removals on July 26.
   
   This process is flawed, a Houston Chronicle editorial contends: “Many migrants are unlikely to have lawyers to walk them through this process, subjecting them to Border Patrol agents who are often poorly trained for these encounters.” The Chronicle cites a 2016 finding from the U.S. Commission on International Religious Freedom that “in 86.5 percent of the cases where a fear question was not asked, the record inaccurately indicated that it had been asked, and answered.”
   
7. Reuters reported that DHS has begun expelling some Mexican and Central American adults and families by air, sending them deep within southern Mexico. It appears the first expulsion flight took place on August 5. “The United States will work with non-governmental organizations and shelters in southern Mexico to ensure that migrants can safely return to their home countries,” a source told Reuters—though there is no indication that such organizations or shelters are willing to cooperate with this arrangement. This process is for Title 42 expulsions into Mexico, not the expedited removals mentioned in the above point.
   
8. NBC News reports that, in order to ease crowding of Border Patrol facilities, many unprocessed families will be transferred to ICE. That agency will either place families in alternatives-to-detention programs within the United States, or put them on deportation flights if they do not express credible fear of return. “In an unprecedented move,” NBC reports, “an agency usually tasked with detention, enforcement and removal of undocumented immigrants… will be performing health screenings, offering COVID vaccines, telling immigrants their legal rights and connecting them with non-governmental organizations that can help them.”
   
9. The Washington Post reports that the Biden administration is preparing to offer the Johnson and Johnson single-dose COVID vaccine to migrants along the border. The vaccine would be administered to those being processed in the United States—including those facing deportation—but not to those expelled under Title 42. The same article notes that ICE continues to lag badly in its administration of vaccines within its network of U.S. detention centers, though an oversight official’s July 31 report claims that “46 percent of ICE detainees who were offered vaccine had refused it during the past month.”
   
10. The average daily population of ICE’s detention facilities rose to 27,041 in July, up from 15,100 in January, the Biden administration’s first month. Of the 25,526 in ICE custody as of July 31, 3,318 (13 percent) were detained asylum seekers.
    
11. As the Biden administration seeks to reunify the last few hundred of 3,913 asylum-seeking families separated during the Trump administration, a BuzzFeed investigation looked at what happened to some families after reunification. Documents indicate that “families from the first group of reunifications have reported homelessness shortly after entering the country.”
    
12. A new report from the National Immigrant Justice Center (NIJC) and FWD.us offers important perspective on asylum. It documents how the United States and other recipient governments have been steadily chipping away at the right to seek refuge for years. Policies weakening the ability to seek asylum “have caused unimaginable human suffering and loss, particularly for Black, Brown, and Indigenous asylum seekers,” the report points out.

Links

• A new WOLA commentary explains the current rise in migration at the border and throughout the hemisphere as part of a trend going back as far as 2014, heightened by the pandemic. It argues that the increase presents the Biden administration with an opportunity to show the world a different approach: how to handle a migration event without another cruel and ineffective crackdown.
• Local government in Mexico’s troubled border state of Tamaulipas announced on August 4 that the U.S. Drug Enforcement Administration (DEA) and ICE’s Homeland Security Investigations (HSI) unit gave recognition awards—plaques citing “exceptional contributions” and “outstanding service”—to Arturo Rodríguez, head of a 150-person state police unit. Prosecutors accuse eight or twelve members of this unit, the GOPES (Special Operations Group), of carrying out a grisly massacre of 14 Guatemalan migrants and five other people near the border, in the municipality of Camargo, in January. VICE detailed the Camargo massacre and its investigation in a report also published August 4. Associated Press coverage of the DEA/HSI award describes other serious recent allegations that GOPES personnel have killed, stolen from, and otherwise abused civilians.
• CBP announced it will begin to outfit its officers and Border Patrol agents with body-worn cameras, in order “to better enhance its policing practices and reinforce trust and transparency,” especially regarding migrant encounters and use-of-force incidents. The agency plans to deploy about 6,000 body cameras by the end of 2021. Reuters notes that in 2015, CBP under the Obama administration had piloted the use of body cameras but ultimately rejected them, citing “a number of reasons not to adopt the devices, including cost and agent morale.”
• Mexico is building three permanent National Guard barracks in Ciudad Juárez, across from El Paso, including one in the western colonia of Anapra, a frequently used migration corridor.
• The government of Mexico, where legal firearms are rare, filed suit in a Boston federal court against several U.S. gun manufacturers and distributors. The suit alleges that these companies seek to profit from Mexican criminal groups, who pay for weapons smuggled south over the border from the United States, where they are easy to obtain legally.
• A report from the International Refugee Assistance Project (IRAP) recommends that the U.S. Department of Justice issue an “opinion that clarifies that climate change serves as grounds for refugee status under U.S. law.”
• A passenger van carrying 30 people, most of them probably undocumented migrants, crashed after taking a high-speed turn off a highway in Brooks County, Texas, about 80 miles north of McAllen and the border. The driver and nine passengers were pronounced dead. Brooks County is where large numbers of migrants die walking through arid scrubland trying to evade a Border Patrol highway checkpoint; its sheriff reported finding 50 human remains during the first 6 months of 2021.
• Mexican Army troops and national guardsmen in the border city of Mexicali rescued six men from the southern state of Guerrero, whom a criminal group was holding captive. It turned out they were being used as forced labor to build and operate an 80-meter-long, 16-meter-deep tunnel under the border into Calexico, California.