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.

CBP reports “record” annual migrant numbers, with notable changes in recent months

On October 22—just as last week’s update was going online—Customs and Border Protection (CBP) released data about its encounters with migrants during September 2021. As September was the last month of the U.S. government’s fiscal year, CBP was also making public its 2021 end-of-year totals.

Headlines noted that CBP and its Border Patrol component “encountered”—that is, took into custody, at least briefly—more migrants than in any prior fiscal year. The agency reported encountering 1,734,686 undocumented people between October 2020 and September 2021. Of that number, 1,659,206 were encountered between official ports of entry by Border Patrol. That narrowly exceeds the 1,643,679 migrant apprehensions Border Patrol logged in 2000.

In 2000, Border Patrol had about half as many agents as it does now at the U.S.-Mexico border and most migrants were seeking to avoid apprehension versus actively seeking agents out to request asylum. It is very likely, then, that a far larger number of additional migrants evaded capture in 2000 than did in 2021. So this year was almost certainly not the year with the largest number of overall border crossings.

The 2021 figure may also include more double counting than in the past: CBP reported that 26 percent of the migrants it encountered in September had already been encountered at least once before during fiscal 2021. That is way higher than the 14 percent “recidivism” average that the agency recorded between 2014 and 2019. (CBP does not have “recidivism” estimates from before 2005.)

The number of individual people encountered in 2021, then, was significantly fewer than 1.7 million. During the first 11 months of the fiscal year, CBP had reported 1.54 million “encounters” with 1,002,722 individual people. While the agency did not update these numbers for the full 12 months, the final number of individuals is probably about 1.15 million, which is larger—but not immensely larger—than 2019:

The reason for the increase in repeat crossings is “Title 42,” the pandemic border policy put into place by the Trump administration in March 2020, which the Biden administration has maintained. Under the pretext of avoiding holding migrants in congregate settings where COVID-19 might spread, “Title 42” seeks to expel them as quickly as possible, without regard to whether they might be seeking asylum. If they are Mexican, Guatemalan, Honduran, or Salvadoran, and sometimes from other countries, CBP or Border Patrol may send them back into Mexico within an hour or two. For many migrants, especially single adults, the rapid expulsions enable them to attempt repeat crossings.

The year-end statistics show that CBP used Title 42 heavily in 2021. The agency expelled migrants, either into Mexico or by air to their home countries, on 1,063,526 occasions over the course of the year. That’s nearly 61 percent of all encountered migrants in 2021. The number of expulsions since March 2020—1,268,313—is now roughly equivalent to the population of Dallas, Texas.

The Biden administration stopped expelling children who arrived unaccompanied (and who are not Mexican), even though an appeals court, overturning a November 2020 district court decision halting the practice, had cleared a legal path for sending kids back to their own countries alone. The number of unaccompanied children encountered in fiscal 2021—147,975—was a record, though numbers leveled off in August and dropped in September.

Migrants arriving as families—parents with children—totaled 483,846 in 2021, fewer than the 527,112 apprehended in 2019. The Trump and Biden administrations applied Title 42 to expel families 27 percent of the time in fiscal 2021. Both families and unaccompanied children declined from August to September.

Most of those expelled were single adult migrants, who were subject to Title 42 provisions 84 percent of the time in 2021. As single adults are more likely to attempt repeat crossings, their overall “encounters” number is artificially high, with much double-counting.

Migrants not seeking asylum often travel in remote and treacherous areas, seeking to avoid capture. So do migrants who might seek asylum but have decided against surrendering to U.S. authorities, because Title 42 has made asylum very hard to request. This has led to an increase in the number of migrants dying of preventable causes, like dehydration and exposure, on U.S. soil—often deep in borderland deserts. ABC News reported October 17 that CBP found “over 470” remains of migrants in 2021, a number that is near the annual record, but hasn’t been officially reported and could still rise. In the border sectors that they cover, local humanitarian organizations’ counts of deceased migrants tend to be higher than CBP’s as CBP only reports the remains it encounters, not the total number of migrants who have died in U.S. borderlands.

More than 80 percent of encountered migrants came from Mexico or Central America’s “northern triangle” region (El Salvador, Guatemala, and Honduras). In recent months, though, an increasing number of migrants—an unprecedented 36 percent in September—came from other countries (yellow on this chart).

In September, the number-five country was Haiti, which is unsurprising since nearly 15,000 Haitian migrants arrived in Del Rio, Texas over a few-day period in the middle of the month. During the entire fiscal year, though, the number-five country was Ecuador, followed by Brazil, Nicaragua, and Venezuela.

For the first time ever, more than half of family unit members encountered at the border in September were from countries other than Mexico or the northern triangle. September also saw a very sharp drop (45 percent) from August in arrivals of family members from El Salvador, Guatemala, and Honduras.

A look at the citizenship of family members from “other” countries shows that most are from South America (Brazil, Ecuador, Venezuela) or Haiti. Brazil was just behind El Salvador as the number-five country of origin for families. Many of the South American citizens are likely to have arrived by air to Mexico, which does not require entry visas of them, and then traveled north to the U.S.-Mexico border.

A look at the top 12 countries of origin of 2021 migrants shows a wide variation in expulsion rates. U.S. authorities applied Title 42 to a majority of Mexicans and of citizens of other countries whom Mexico allows to be expelled: El Salvador, Guatemala, and Honduras. A majority of Ecuadorians were also expelled into Mexico; while we have no official word explaining this, most of them are single adults expelled in the El Paso sector—into Ciudad Juárez, Mexico, where authorities may be permitting expulsions of Ecuadorian citizens.

Citizens of other countries are expelled relatively rarely. That is because the Department of Homeland Security (DHS) must do so by air, to their home countries, which is costly. That cost did not stop the Biden administration from expelling over 8,000 Haitians by air since September 19, following the Del Rio migration event, or running 162 expulsion flights to Central America and 95 to southern Mexican cities between April and September.

The result is a two-tier system in which some countries’ citizens are swiftly expelled without a chance to ask for protection, while others stand a strong chance of being released into the United States to pursue asylum claims. Should the “Remain in Mexico” policy (discussed below) restart in November, it may be applied most heavily to those from this second tier who are from Spanish and Portuguese-speaking countries.

Mexico released its own updated migrant apprehension data on October 29. It showed Mexico’s migration forces shattering their monthly apprehensions record in September, with 41,225. (Their previous record, narrowly set in August, was 32,155.) As with the United States, over 35 percent of September’s apprehensions were of citizens of countries other than El Salvador, Guatemala, and Honduras.

As noted in past updates, Mexico’s refugee agency COMAR has already more than broken its annual record for asylum requests; through the end of September the agency counted 90,314 applications, continuing a pattern of exponential growth interrupted only during the pandemic year of 2020.

The graphics used in this narrative, among others, are available as a regularly updated PDF document at bit.ly/wola_border.

Caravan forms in Chiapas

Some outlets reported during the week of October 17 that migrants stranded in Mexico’s southern border-zone city of Tapachula were planning an October 23 “caravan” to Mexico City, where they would petition for permission to move more freely about Mexico’s territory while awaiting decisions on their asylum cases. Mexican law currently prohibits asylum applicants from leaving the state where they submit their applications until their case is resolved, and tens of thousands of migrants are effectively confined to Tapachula, a municipality of 350,000 people, about a dozen miles from Guatemala in Chiapas, Mexico’s poorest state.

As announced, at least 1,000 migrants departed Tapachula on the 23rd for what they are calling the “March for Peace.” They have progressed entirely on foot, moving slowly and sticking together along southern Chiapas’s coastal highway. The march has attracted more participants along the way: estimates of its size—which is hard to gauge—now tend to run in the 2,000-3,000 range. On October 29, Mexico’s National Migration Institute (INM) offered an estimate of 1,200.

As of October 29, after six days of walking, the group was somewhere between Escuintla and Mapastepec, Chiapas, less than two hours’ driving distance from their starting point in Tapachula. Luis Villagrán, an activist closely accompanying the march, said that the slow pace owes to a deliberate choice to keep the group close together. Meanwhile, as John Holman has documented at Al Jazeera, Mexican authorities’ strategy so far appears to be to allow the group to walk in this zone’s intense heat, but to prohibit any vehicles or buses from giving rides to the migrants.

This larger caravan comes after four unsuccessful attempts by groups of several hundred mostly Haitian migrants to leave Tapachula en masse in late August and early September. On all four occasions—as covered in earlier updates—INM agents, backed by National Guard personnel, blocked or dispersed the migrants within a couple of dozen miles of Tapachula. (In fact, no “caravan” has successfully reached the U.S. border since the end of 2018.) At times, Mexico’s forces employed brutality to stop the migrants’ progress: agents were caught on camera punching and kicking people who were already subdued. These unsuccessful “caravans” were followed by the mysteriously sudden arrival of nearly 15,000 Haitian migrants at Mexico’s northern border, in Del Rio, Texas, in mid-September.

The current group includes some Haitian migrants, but appears to be mostly Central American with citizens of a few other countries, notably Cuba, accompanying. Many—perhaps a majority—are families with young children.

The only confrontation with Mexican security forces so far occurred at the very beginning of the march, when participants encountered a cordon of National Guardsmen and migration agents at Tapachula’s outskirts. The group pushed through, though a small boy suffered minor head injuries in the scuffle. Security forces have been closely shadowing the marchers ever since.

A significant number of marchers appear not to be intent on reaching the United States. Many are simply frustrated at being unable to leave Tapachula, where employment and income opportunities are scarce. Of the 90,314 people who applied for asylum in Mexico during the first 9 months of 2021, 70 percent (63,126) did so in Tapachula after crossing from Guatemala. While COMAR has taken some measures to try to speed asylum adjudication, such as using Tapachula’s stadium as a temporary processing facility, migrants are tiring of being forced to wait there for many months, particularly when more economically prosperous Mexican states have greater need for laborers. So while some caravan participants no doubt hope to reach the United States, for many the goal is to get to Mexico City where they can appeal to the COMAR office for either faster adjudication or the ability to await their decision elsewhere.

Two activists closely accompanying the march, Irineo Mujica of Pueblo Sin Fronteras and the above-cited Luis Villagrán of the Centro de Dignificación Humana, say they are bringing “46 packets with petitions to federal judges to allow the migrants to leave Tapachula.” At their current pace—if indeed they are permitted to exit Chiapas—the marchers will take over a month to get to Mexico City.

The INM reported on October 27 that it was facilitating returns to Tapachula of an unknown number of migrant families who, exhausted, sought to return there voluntarily. On October 29 the agency reported that in meetings with Mujica and Villagrán, it offered to provide humanitarian visas to especially vulnerable migrants, and “to transfer migrants to several states in the country to provide them with assistance in their procedures, as well as provide them with lodging in open-door shelters and food.” The activists rejected the offer, according to INM, arguing that people should be able to register in states of their choosing.

In fact, the marchers themselves rejected the offer, Holman reports, though “no government official actually came to put that proposal to the people, leaving the caravan organizers to frame it to them.” He adds, “the states finally on offer [as places to live and work] also weren’t the most attractive safety or work-wise: Morelos, Guanajuato, Guerrero, Oaxaca, Puebla, and Hidalgo.” Most of these southern and central Mexican states, while still far from the U.S. border, have healthier economies than Chiapas, and UNHCR has local integration programs in Puebla and Guanajuato. However some, particularly Guanajuato, Guerrero, and Morelos, face severe public security challenges.

Two U.S. Border Patrol sources told the Washington Examiner that “government intelligence reports” tell them to expect caravan participants to arrive eventually in Del Rio, Texas and Yuma, Arizona. Mark Morgan, an acting head of CBP during the Trump administration, told the Examiner that he is “not as concerned with the caravan” because the number of migrants who arrive at the border with smugglers every day is much larger. “The United States Border Patrol deals with multiple caravans every single day. It’s just spread out through the entire southwest border.”

DHS issues Remain in Mexico “re-termination” memo

On October 29 DHS Secretary Alejandro Mayorkas issued a long-awaited memorandum once again terminating the “Remain in Mexico” program (officially known as “Migrant Protection Protocols” or MPP). The Department shared a press release, the memo itself, and a longer explanatory statement. The Biden administration then filed a motion to send the matter back to district court.

The Trump administration launched “Remain in Mexico” in December 2018, applied it to migrants for the first time in January 2019, and expanded it dramatically in June 2019. Between then and January 2021, DHS sent over 71,000 non-Mexican asylum seekers back into Mexico with instructions to report back to border crossings months later, where their immigration court hearings would take place by teleconference. Mexico agreed to this arrangement, but provided few services or protection to the migrants waiting on its side of the border. More than 1,500 asylum seekers under the program were kidnapped or attacked while waiting in Mexican border towns, and asylum approval rates were far lower than in normal immigration courts, in part due to significant difficulties in accessing legal counsel.

Candidate Joe Biden opposed Remain in Mexico—his wife Jill even visited a tent camp where asylum seekers were subsisting in the city of Matamoros—and halted new enrollments in the program on Inauguration Day 2021. Soon after, DHS launched an effort that brought more than 10,000 asylum seekers under Remain in Mexico into the United States to pursue their claims. On June 1, Mayorkas issued a memorandum formally terminating Remain in Mexico.

In August, though, conservative critics of Biden’s border policies used the justice system to force the program’s revival. The Republican attorneys-general of Texas and Missouri brought a lawsuit alleging that the Biden administration failed to “consider all relevant factors” in terminating Remain in Mexico. On August 13, Amarillo, Texas District Court Judge Matthew Kacsmaryk agreed with the plaintiffs and ordered the Biden administration to make a “good-faith effort” to restart the Trump-era program. On August 24, the Supreme Court refused to suspend Kacsmaryk’s order while lower-court appeals continue.

Court filings on September 15 and October 15 detail the Biden administration’s “good faith efforts,” including construction of “tent court” facilities for video hearings in Laredo and Brownsville, Texas, and ongoing negotiations with the Mexican government. Administration officials continue to insist, though, that they oppose the program that the courts are forcing them to reinstate.

Migrants’ rights advocates had been calling on DHS to issue a new memo “re-terminating” Remain in Mexico, this time with more specific language explaining the reasoning for doing so. By doing so, they hope, the administration can meet the court’s requirement to “consider all relevant factors” before shutting the program down. It took two and a half months, but Secretary Mayorkas produced that memo on October 29.

According to DHS’s interpretation, the new memo alone is not enough to halt Remain in Mexico. That will require “a final judicial decision to vacate the Texas injunction,” the memo reads—and that is up to the same court that agreed with the Texas and Missouri attorneys-general. In the meantime, DHS “will continue complying,” restarting the Remain in Mexico program. (Axios reports that the Biden administration is considering “softening” a renewed program by offering COVID-19 vaccines to all asylum-seeking migrants whom it forces to remain in Mexico.)

While DHS expects to have infrastructure in place by mid-November, it does not yet have Mexico’s agreement to admit thousands more non-Mexican asylum seekers on its soil. As the October 15 filing indicates, Mexico has raised some strong objections about long wait times for hearing dates, returns of especially vulnerable migrants, access to counsel, and other issues.

The October 29 memorandum may give Mexico further pause before agreeing to a restart of the program. While not going so far as to say that MPP was illegal, it details the program’s many failures, including ways in which it violated asylum seekers’ rights, even physically endangering them.

“I have concluded that there are inherent problems with the program that no amount of resources can sufficiently fix,” Mayorkas’s memo reads. The explanatory statement discusses migrants’ difficult conditions while waiting in Mexico, concerns about sending asylum seekers back to danger, access to counsel and other process issues, costs, damage to the U.S.-Mexico relationship, and unclear impact on reducing migrant flows, among several other issues.

“Significant shortcomings” in accountability for Border Patrol Facebook group posters

A strongly (and explicitly) worded report from the House of Representatives’ Committee on Oversight and Reform, issued on October 25, details the disciplinary process following 2019 revelations of a secret Facebook page at which CBP personnel posted racist, violent, and lewd content. The Committee discovered that for most involved, consequences were light: they “had their discipline significantly reduced and continued to work with migrants.”

In July 2019, ProPublica revealed the existence of “I’m 10-15,” a Facebook group with about 9,500 members, many or most of them CBP and Border Patrol personnel. (“I’m 10-15” means “I have migrants in custody.”) ProPublica, and later the Intercept, posted screenshots of content replete with sexual imagery, threats of violence, racist sentiments toward migrants, and disparagement (or worse) of left-of-center political figures.

“CBP knew about Border Patrol agents’ inappropriate posts on ‘I’m 10-15’ since 2016, three years before it was reported publicly,” the House Committee found. Among the Facebook group’s members were Border Patrol’s last two chiefs, Carla Provost (2018-2020) and Rodney Scott (2020-August 2021). Both indicated that they followed the group in order to monitor agents’ attitudes and complaints. After ProPublica revealed the page’s existence, Provost had said “these posts are completely inappropriate” and that agents “will be held accountable.”

Investigators had a hard time finding out whether anyone was indeed being held accountable. Facebook refused to provide content from the page to investigators from CBP’s Office of Professional Responsibility (OPR), forcing them to rely on screenshots obtained by media outlets. During the Trump administration, CBP refused to hand over disciplinary records to the House Oversight and Reform Committee, even after the committee issued a November 2020 subpoena. The records were turned over in February, after Donald Trump left office.

The Committee found “significant shortcomings in CBP’s approach to disciplining and training employees on social media misconduct.” CBP OPR opened 135 investigations into allegations related to “I’m 10-15” and other unnamed secret Facebook groups. A chief patrol agent, in the role of “deciding official,” made all disciplinary decisions.

This individual decided that 60 of the 135 CBP employees committed misconduct. In the end, the Committee found, “Almost all received significantly lighter final penalties than proposed by CBP’s Discipline Review Board.”

In the end:

• 2 were fired; CBP’s Discipline Review Board had recommended 24 removals. Both had published sexualized and in some cases violent images of Rep. Alexandria Ocasio-Cortez (D-New York), among other disturbing content.
• 43 were suspended without pay, most for five days or fewer; the Discipline Review Board had recommended 60 suspensions. Those suspended were “then permitted to return to work in positions of power over migrants,” the Committee’s report notes.
• 12 received letters of reprimand, 3 received “alternate disciplinary actions” like suspension with pay, 11 received “corrective or non-disciplinary actions,” and 10 took retirement before disciplinary action was taken. Twelve appealed their punishments.

“The CBP discipline system is broken,” a report from an independent DHS panel had flatly stated in 2016. “No one official and no single office of CBP is actually responsible for assuring timeliness for all phases of the discipline process,” it notes, while “responsibility for investigating an allegation of misconduct is fragmented.” Improving human rights oversight was not a priority during the Trump administration, so no notable accountability progress was made since that report’s publication.

The House Oversight and Reform Committee report describes the byzantine accountability process:

OPR investigates the conduct, and CBP’s Discipline Review Board proposes discipline. A deciding official then makes a discipline determination. In some cases, when CBP substantiates allegations of misconduct, employees may be able to appeal to the Merit Systems Protection Board (MSPB); file a grievance with a CBP employee union such as the National Border Patrol Council, which may invoke arbitration on behalf of the employee; or, if they believe the action was discriminatory, file a complaint with the Equal Employment Opportunity Commission.

This description leaves out the DHS Office of Inspector General and Office on Civil Rights and Civil Liberties, which may play at least tangential roles.

“CBP’s failure to prevent these violent and offensive statements by its own agents or impose adequate discipline creates a serious risk that this behavior will continue,” reads a press statement from the committee’s chairwoman, Rep. Carolyn Maloney (D-New York). “As we saw with the mistreatment of migrants by Border Patrol agents in Del Rio, Texas last month, systemic behavior problems within CBP persist. CBP must take immediate steps to reform its disciplinary processes, strengthen social media policies and training, and address longstanding issues of poor morale within its ranks.”

Texas update

Texas Gov. Greg Abbott (R), an archconservative critic of the Biden administration’s border and migration policies, has added $300 million to his state’s National Guard budget to pay for a deployment to the border, part of what he calls “Operation Lone Star.” At the same time, however, “Texas has slashed its tuition assistance budget by more than half” for its National Guardsmen, Army Times reports.

Gov. Abbott is also using state funds to build barriers along segments of Texas’s border with Mexico. Among the five companies under consideration to build this fencing is Fisher Sand and Gravel, a North Dakota company that got billions in Trump administration wall-building contracts, and also built private barriers for “We Build the Wall,” a non-profit whose founder is under indictment for fraud and tax evasion.

Gov. Abbott has instructed state police and guardsmen to arrest migrants on state charges of “trespassing.” Since June, Texas has confined at least 1,300 migrants in two state jails. A report from CNN shows that some of these migrants, including many asylum seekers, have been held for weeks or months without being charged with a crime, and without access to counsel. Some haven’t even been able to make phone calls to loved ones for weeks at a time. In some cases, body camera footage shows, Texas police encountered migrants in areas where they were not trespassing, then marched them onto private property in order to arrest them. Judges have ended up releasing many migrants without charges—at times into the U.S. interior.

The Federal Emergency Management Agency (FEMA) this week turned down a request from Gov. Abbott for reimbursement of what he regarded to be “emergency” border spending.

Links

• The Southern Border Communities Coalition has sent a letter to congressional leadership urging a hearing into Border Patrol’s “Critical Incident Teams,” secretive units whose purpose is “to seek to exonerate agents. They act as cover-up units, protecting agents, rather than the public, and they answer to no one except the Border Patrol chiefs.” The SBCC notes that no other law enforcement agency has anything similar.
• Though DHS Secretary Alejandro Mayorkas promised that an investigation would be complete in “days, not weeks,” the Border Patrol agents captured in photos and video charging on horseback at Haitian migrants in Del Rio, Texas in September have not yet been questioned about their actions, a source tells ABC News. Apparently, action is first required from the Justice Department. The agents in question have been assigned to administrative duties in the meantime.
• Rights organizations and advocates (including WOLA) called for an end to Title 42 expulsions and other denials of the right to seek protection during a virtual  hearing about “Protection of persons in human mobility in the United States, Mexico, and Northern Central America,” part of the 181st sessions of the OAS Inter-American Commission on Human Rights. . U.S. and regional organizations also presented at a hearing on the “Human rights situation of migrants and refugees in the United States,” with the participation of several U.S. officials from the Departments of State and Homeland Security. 
• Robert F. Kennedy Human Rights is honoring Guerline Jozef, director of the Haitian Bridge Alliance, with its 2021 Human Rights Award. Jozef has led efforts to obtain Temporary Protected Status for Haitians, and to oppose Title 42 aerial expulsions of Haitian migrants to a country that has suffered, since July, a presidential assassination, an earthquake, and generalized gang violence including what may be the world’s worst kidnapping rate. “Despite these dangerous conditions, the Biden administration has continued to make use of Title 42, a racist and draconian Trump-era policy, to forcibly deport over 8,000 asylum-seekers, putting their lives at risk,” reads a statement from RFK Human Rights.
• In 2020, despite a sharp nationwide increase, “violent crime rates in 11 of the largest communities along the U.S.-Mexico border stayed below the national average,” Axios reports based on FBI and census data.
• DHS Secretary Alejandro Mayorkas issued a new guidance expanding the list of domestic locations that are off-limits to Immigration and Customs Enforcement (ICE) agents. In addition to schools and hospitals, the “protected areas” list now includes COVID vaccination locations, places of worship, places where children gather, social services establishments, disaster or emergency response centers, religious or civil ceremonies, and public demonstrations, parades, or protests.
• Reports in Honduras’s media cover Haitian migrants’ entry into the country from Nicaragua via informal rural border crossings, and a greatly increased presence of Haitian migrants near the bus station in the capital, Tegucigalpa.
• Two Haitian women were found dead on Monday and Tuesday along the Mexico-Guatemala border near Tapachula. One was apparently strangled, while authorities say the other died of cardiac arrest.
• “The Biden administration is in talks to offer immigrant families that were separated during the Trump administration around $450,000 a person in compensation,” the Wall Street Journal reported on October 28. That’s “close to $1 million a family, though the final numbers could shift.” On Fox News, former vice president Mike Pence called the idea “incomprehensibly stupid.”
• Rep. Veronica Escobar (D-Texas) introduced legislation, the “Reimagining Asylum Processing Act,” which would make a series of humanitarian, capacity, and efficiency improvements to processing of asylum seekers, which is currently a weak point at the U.S.-Mexico border.
• The Mexican border city of Matamoros, Tamaulipas endured an alarming night of shootouts and road blockades as organized crime gangs fought authorities on October 22. Four people were killed. Just across the river, in Brownsville, Texas, the Biden administration is building a “tent court” facility for asylum seekers whom a revived Remain in Mexico program may force to wait for months in Matamoros.
• The city of Tijuana is building a fence around the encampment of migrants, many of them expelled by U.S. authorities under “Title 42,” that has sprung up this year next to the San Ysidro-Chaparral port of entry.

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.

Border migrant encounters appear to fall in September, capping off a fiscal year of very high levels

U.S. Customs and Border Protection (CBP) has not yet released its count of undocumented migrants encountered at the U.S.-Mexico border in September—and thus in all of fiscal year 2021, which ended September 30. Nonetheless, the agency shared some numbers with the Washington Post’s Nick Miroff, and later with NBC News, showing what could be the largest number of migrant encounters ever recorded in a single year.

During fiscal 2021, CBP encountered 1.7 million migrants, 1.66 million of them between the land ports of entry (Border Patrol) and about 40,000 at the ports of entry (CBP’s Office of Field Operations). The 1.66 million exceeds the prior record of 1.64 million apprehensions Border Patrol reported in 2000, and 1.62 million in 1986.

The 2021 figure includes a lot of double and triple-counting. Due to the controversial “Title 42” pandemic policy, under which CBP rapidly expels most Mexican, Salvadoran, Guatemalan, and Honduran migrants into Mexico regardless of protection needs, 2021 saw a large number of repeat crossers. For many migrants, Title 42 means spending an hour or two in Border Patrol custody, then being delivered back into Mexico—a process that has incentivized repeat attempts. In recent months, the Post recalls, “recidivist” migrants have made up more than 25 percent of those CBP has encountered.

As a result, the actual number of people apprehended in 2021 is assuredly lower than 1.7 million. At the end of August, when CBP reported 1.54 million “encounters” border-wide, the agency noted that this represented “1,002,722 unique individuals”—in other words, about one and a half encounters per person. The agency doesn’t report (or didn’t keep) recidivism data from before 2005, but repeat crossings were also probably quite frequent during the previous record-breaking years (2000 and 1986), a time of few border barriers, heavy use of voluntary returns, and a mostly adult Mexican migrant population.

NBC’s Julia Ainsley reported that CBP encountered 192,316 migrants at the U.S.-Mexico border during September. If that figure incorporates both Border Patrol and ports of entry, it would be an 8 percent reduction from August and a 10 percent reduction from July. Data about arrivals of unaccompanied children at the border also indicate a notable decline since the summer.

Of the 1.66 million Border Patrol encounters in fiscal 2021, Miroff reports, “more than 608,000” were from Mexico, 309,000 from Honduras (a country whose entire population is just below 10 million), 279,000 from Guatemala, 96,000 from El Salvador, and 367,000 from other countries.

Of the nine sectors into which Border Patrol divides the U.S.-Mexico border, the most migrants were encountered in southeast Texas’s Rio Grande Valley (549,000), which has been in first place every year since 2013. In second place, for the first time ever, is south-central Texas’s rural Del Rio sector (259,000), which was sixth in 2019 and 2020. Del Rio is where about 15,000 mostly Haitian migrants arrived en masse in mid-September.

Reports point to a culture of inhumane behavior at U.S. border agencies

This week saw a few NGO and media reports pointing to an everyday pattern of cruelty toward migrants among CBP and Border Patrol personnel, ranging from petty insults to acts of violence.

On October 21 Human Rights Watch published findings from documents obtained via a years-long Freedom of Information Act (FOIA) lawsuit. “They Treat You Like You Are Worthless” is based on over 160 accounts of “misconduct and abuse of asylum applicants at the hands of officers within several DHS [Department of Homeland Security] components, particularly CBP officers and Border Patrol agents.” These were compiled by asylum officers from U.S. Citizenship and Immigration Services (USCIS, another DHS component) during interviews with protection-seeing migrants.

Allegations of agents’ and officers’ abuse include “assault, sexual abuse, due process violations, denial of medical care, harsh detention conditions, and dehumanizing treatment at the border.” Among many alarming examples the report brings to light are these in its opening summary:

In 2017, a US Border Patrol agent kneed a woman in the lower pelvis, leaving bruises and pain days later, according to her statement to a government official screening her asylum claim. In a separate incident that year, a Border Patrol agent or Customs and Border Protection (CBP) officer forced a girl to undress and then inappropriately touched her. In 2018, a CBP officer hit another asylum applicant so hard he was knocked unconscious and suffered brain swelling. That same year, an officer wearing a green uniform, consistent with those of the Border Patrol, asked an asylum applicant to give him oral sex in exchange for being released from custody. Another asylum applicant was bitten in the testicle by a Border Patrol service dog and denied medical treatment for about one month and ultimately had to have his testicle surgically removed. In 2019, CBP officials appeared to withhold food from a man in a freezing cold holding facility until he agreed to sign a paper that he did not understand.

The FOIA revelations, Human Rights Watch concludes, show a deeply embedded culture in CBP and Border Patrol that views migrants as adversaries deserving of punishment or suffering, and that assumes its personnel will not be held accountable.

A 2019 report from the DHS Office of Inspector General found that 47 percent of CBP employees surveyed did not believe officials at all levels were held accountable for their conduct. In a 2018 affidavit, CBP’s former deputy assistant commissioner for internal affairs, James Wong, described CBP leadership as “reluctant to hold agents and others within the agency accountable for their actions, including if they were involved in criminal activity.” …The FOIA documents paint a picture of DHS as an agency that appears to have normalized shocking abuses at the US border.

“The documents make clear that reports of grievous CBP abuses—physical and sexual assaults, abusive detention conditions and violations of due process—are an open secret within DHS,” Clara Long, the Human Rights Watch report’s principal author, told the New York Times. 

The report calls for fundamental changes in migrant reception and processing practices, as well as for far greater oversight and accountability of these agencies, both within DHS and by other federal investigative bodies, including Congress. A DHS spokeswoman told the Times that Secretary Alejandro Mayorkas, who took over in February, has ordered internal reviews of policies and training, and that the Department has beefed up its Office for Civil Rights and Civil Liberties (CRCL), which has a lackluster record of following up on complaints.

Also on October 21, Human Rights First published the latest in a series of very grim updates about the Title 42 policy and its impact on the rights and well-being of asylum seekers. “The suffering of families, adults, and children subjected to this policy continues to mount, with at least 7,647 kidnappings and other attacks on people blocked or expelled under Title 42 since President Biden took office,” it reads.

Like the Human Rights Watch document, the Human Rights First report, “Illegal and Inhumane,” details numerous recent examples of cruel and callous treatment of asylum seekers at the hands of CBP and Border Patrol. Among them:

• “In October 2021 DHS agents repeatedly told an asylum-seeking Honduran family to ‘shut up’ and refused to answer their questions as they transferred the family by plane from McAllen, Texas, where they had crossed the border to seek asylum, to Arizona for expulsion into Nogales, Mexico. According to Kino Border Initiative, an agent attempted to seize the family’s documents related to their asylum claim.”
• “A Haitian mother expelled in late September 2021 begged U.S. officers to remove her handcuffs to enable her to comfort her crying young daughter on the plane ride, according to Blaine Bookey from UC Hastings Center for Gender and Refugee Studies.”
• “Belone Mpembele, an asylum seeker from Angola, was expelled to Haiti by the United States… in its rush to expel Haitians in September 2021.”
• “DHS continues to carry out some Title 42 expulsions to dangerous Mexican border cities in the middle of the night, when businesses are closed and humanitarian services are unavailable, increasing the risk that expelled individuals will be attacked. For example, Border Patrol agents expelled more than 20 people through the DeConcini port of entry to Nogales, Mexico around 2:00 a.m. in late August 2021, leaving them stranded.”
• “In August 2021, DHS subjected three Nicaraguan political dissidents to a lateral expulsion flight after they sought protection near McAllen, Texas. DHS officers verbally abused them, threatening to release dogs to attack them. The officers woke the men at 1:00 am, handcuffed them, and forced them to stand for more than two hours before the expulsion flight. The officers lied to the men telling them that they would be sent to California and permitted to pursue their asylum cases, but instead expelled them to Tijuana.”

Numerous migrants’ rights and advocacy groups submitted comments this week on proposed Justice Department and DHS asylum regulations (as did former Trump advisor Stephen Miller’s “America First Legal” group). A comment submitted by the American Civil Liberties Union (ACLU) of Texas calls for clearly removing CBP from the asylum process due to its adversarial posture toward asylum seekers.

The ACLU document notes that “CBP personnel regularly fail to ask required questions” of apprehended migrants regarding whether they fear persecution and return to their home country, “even in the presence of independent observers.” The comment cites several examples of CBP personnel falsely recording in their paperwork that asylum seekers did not express fear of return. The agency’s jail-like holding facilities, it continues, are no place to expect people to prepare for a high-stakes credible fear interview to evaluate their pleas for protection.

Further troubling information about CBP and Border Patrol treatment of migrants comes from a leaked January 2021 CRCL document obtained by BuzzFeed’s Hamed Aleaziz. The report documents agents’ and officers’ zeal to send asylum-seeking migrants back into treacherous Mexican border cities to await their U.S. hearings, under the Trump administration’s controversial “Remain in Mexico” policy (also known as “Migrant Protection Protocols” or MPP, and discussed further below), regardless of their disabilities or medical conditions.

“The report offers a rare window into the behind-the-scenes dysfunction and confusion surrounding the Migration Protection Protocols,” Aleaziz notes. It documents a dozen cases in which U.S. personnel found that migrants were “amenable” to being forced to remain in Mexico despite “circumstances such as cognitive disability, glaucoma, epilepsy, cervical metaplasia, uterine cancer, heart conditions, ‘crippled’ legs, chicken pox, AIDS, and diabetes.” BuzzFeed continues:

In one case, investigators looked into an allegation that a 6-year-old girl from Honduras was returned to Mexico despite having advanced cerebral palsy. The CBP records the investigators reviewed indicated that she, her parents, and brother were placed into MPP on May 20, 2019. A DHS form the investigators reviewed indicated “CRIPPLED LEG, LEFT” and “CRIPPLED LEG, RIGHT” under a section reserved for “scars, marks, and tattoos.”

There were no other records relating to her health.

In 2019 CBP sent back into Mexico an 11-year-old boy who “had severe epilepsy, with convulsions leading to loss of memory and vomiting.” Personnel also sent into Mexico “a 4-year-old child in MPP who had been found to have chicken pox and his young sister who had been sexually assaulted.” Other asylum seekers relegated to Mexican border towns included “a 34-year-old woman who had a pituitary tumor that pressed against her brain, a 13-year-old child with only one functioning lung, and an 8-year-old boy who had a urethral malformation that required surgery.”

The CRCL report also confirmed that it is standard Border Patrol practice to separate families who were forced to remain in Mexico: “In emails provided to CRCL by CBP, CBP personnel state that it is USBP procedure to separate one parent from the rest of the family and only maintain family unity for the other parent and children.”

“I once asked CBP why a 13-yr-old boy who lost his left leg in Mexico was placed in MPP,” tweeted BuzzFeed reporter Adolfo Flores, “despite the agency’s guiding principals [sic] saying immigrants with ‘known physical/mental health issues’ should not be placed in the program.” CBP’s response read, “Creating a categorical exclusion for a specific medical condition could have a chilling effect on amenability determinations for MPP. Amputation in and of itself in an otherwise healthy individual is not considered a medical condition that would inhibit enrollment in MPP.”

Humanitarian and human rights groups protest Remain in Mexico restart

As detailed in last week’s update, the Biden administration continues to move toward complying with a Texas judge’s order to restart the Trump administration’s Remain in Mexico program, which President Biden had halted on Inauguration Day and formally terminated on June 1.

Although Mexico has not yet agreed to receive non-Mexican asylum seekers under a renewed MPP, “tent courts” are once again under construction next to ports of entry in Laredo and Brownsville, Texas. DHS expects to have those facilities ready by mid-November, at a cost of $14.1 million. There, asylum-seeking migrants forced to Remain in Mexico will once again be brought to appear before immigration judges—most of them based in San Antonio—via videoconference.

“The court facilities will be located on the same spots where they previously were built in 2019 under then-President Donald Trump, and will be the go-to location for all asylum hearings once MPP is restarted,” Rep. Henry Cuellar (D-Texas), who represents Laredo, told Border Report. “They’re going to set it up the way it was prior to this administration. They’re going to do the same thing in Brownsville. It’s the same contractor from New York,” Cuellar said.

Amarillo, Texas District Court Judge Matthew Kacsmaryk is requiring the Biden administration to file updates on its “good-faith efforts” to restart a program it opposes. The latest filing, from October 15, details some of the Mexican government’s objections to a restarted program. “The GOM [government of Mexico] made clear that enhancing opportunities for MPP enrollees to secure adequate access to counsel is a critical issue that needs to be addressed before it could decide to accept MPP enrollees into Mexico,” that document reads.

“Adequate access to counsel” would require the cooperation of pro-bono attorneys and other service providers, many of whom sought to represent vulnerable asylum seekers in Mexican border towns, often at great personal risk, during the Trump administration. Livid at the prospect of the revival of a program that puts asylum seekers in danger and inherently interferes with due process, and angry at the Biden administration for not taking steps to challenge Judge Kacsmaryk’s order, these attorneys and service providers are refusing to participate in the program—in the strongest possible terms.

On October 16, border-area attorneys and advocates “walked out” of a virtual off-the-record “stakeholder meeting” with Biden administration officials, inserting words of protest into their Zoom backgrounds and exiting after about eight minutes.

“We can no longer come into these conversations in good conscience when the Biden administration continues to perpetuate illegal and inhumane Trump-era immigration policies such as Title 42, and now MPP,” read a prepared statement from the groups in attendance. “Advocates engaged with many of you during the transition and the beginning of the administration. We even provided the administration with a road map that included solutions on how to restore the asylum system. You continue to play politics with human lives. Your policies are sending people to their deaths.”

“We have to proceed in good faith or be held in contempt of court, and as a government, we cannot do that,” Esther Olavarria of the White House’s Domestic Policy Council told the advocates.

Groups have been calling on the Biden administration to issue a new memo “re-terminating” Remain in Mexico, noting that the federal courts’ rulings found that the original June 1 memo insufficiently explained the reasons for termination. A new memo, advocates say, should make clear the administration’s view that MPP violated U.S. immigration law and international human rights commitments, and thus cannot be restarted.

The administration is in the process of preparing a new “re-termination” memo. Advocates have been critical of the lack of urgency with which they are producing the memo, but as an official told reporters in an October 14 call, their view is that “the memo can’t go into effect until the injunction in the federal cases is lifted,” which Judge Kacsmaryk, a Trump appointee, is unlikely to do. Advocates, too, are unclear about whether a new “re-termination” memo would be enough to halt the program without violating the judicial order.

On October 19, 73 legal service providers sent a letter to President Biden and other top officials reinforcing their refusal to participate in or enable Remain in Mexico.

“[T]here is no way to make this program safe, humane, or lawful,” it reads.

No measure of involvement from civil societies will mitigate the harms of this horrific, racist, and unlawful program. Nor is it just for this administration to continue to force U.S. lawyers and humanitarian staff to risk their safety due to the failure of this administration to take swift action to uphold U.S. refugee laws and treaties. We refuse to be complicit in a program that facilitates the rape, torture, death, and family separations of people seeking protection by committing to provide legal services.

Representing people returned under MPP or expelled to Mexico under the illegal Title 42 policy has also endangered attorneys and humanitarian groups, including staff of some of the undersigned organizations. In fact, during the two years it was operated under the Trump administration, U.S. based attorneys were threatened with kidnapping and violence in connection with their representation of people in MPP.

“We stand ready to offer legal services to asylum seekers, were your administration to follow U.S. and international law,” the letter concludes. “But there is no protection in the Migrant Protection Protocols.”

This position makes it unlikely that Biden administration negotiators will be able to satisfy the Mexican government’s concerns about access to counsel for migrants subjected to a renewed Remain in Mexico program. Meanwhile, though, construction crews continue to build the “tent courts” in Brownsville and Laredo.

Senate publicizes its 2022 Homeland Security appropriations bill

On October 18 the Senate Appropriations Committee revealed its draft text of nine bills necessary to fund the U.S. government in 2022, including the Department of Homeland Security appropriation. The Committee published the text, the explanatory statement, and a summary of its version of the 2022 Homeland Security Appropriations Act.

The House of Representatives’ Appropriations Committee approved its version of the 2022 Homeland Security bill, along with an explanatory statement, on July 1. It has not yet passed the full House. Our July 9 update provided an overview of that version of the bill.

Some highlights of the Senate bill:

• Rescinds $1,893,662,867 in prior years’ appropriations for border wall construction. The House bill would rescind $2.06 billion.
• Devotes that rescinded border-wall money to:        
  • CBP salaries and retirement funds ($416 million);
  • New migrant processing facilities ($130 million);
  • New border security technologies ($144 million, compared to $132 million in the House bill), including body-worn cameras;
  • Detection and inspection equipment for ports of entry ($68 million);
  • A transfer to the Interior Department to mitigate the environmental harms done by border wall construction ($50 million, compared to $100 million in the House bill);
  • Training and childcare services for CBP personnel ($41 million);
  • IT modernization, especially for migrant processing ($40 million);
  • Child welfare professionals for CBP facilities ($15 million);
  • Efforts to identify cargo produced by forced labor ($10 million); and
  • “a range of other investments including life-saving search and rescue capabilities, medical support at CBP facilities, and modernizing land ports of entry.”
• Provides $14.5 billion to fund CBP. That’s $80 million below the Biden administration’s request, and $501 million below the 2021 level. (The House bill would provide even less: $14.11 billion.)
• Provides $7.88 billion for Immigration and Customs Enforcement (ICE), $58 million below the Biden administration’s request and $40 million below the 2021 level. (The House bill would provide slightly more: $7.97 billion.) This includes:        
  • $3.93 billion for ICE “enforcement, detention, and removal operations, including transportation of unaccompanied children,” about $194 million below 2021 levels. (The House bill provides $3.79 billion.)
  • $2.63 billion for ICE custody operations, $143 million below the Biden administration’s request and $202 million below the 2021 level. (The House bill provides $2.46 billion.) “The bill cuts funding for an average daily population of detention beds by 5,500,” reads the Senate appropriators’ summary of the bill.
  • $2.23 billion for ICE’s investigative arm, Homeland Security Investigations (HSI), $59 million above the Biden administration’s request and $88 million above the 2021 level. (The House bill provides $2.26 billion.)
• Repurposing unspent funds previously appropriated to ICE, directing them instead to the Biden administration’s Family Reunification Task Force “to help support the reunification of children who were traumatically separated from their parents and legal guardians at the southern border during the last Administration.”

The Senate bill will probably not go through the evenly divided (15 Democrats, 15 Republicans) Appropriations Committee, where measures like the border wall funding rescission could come under attack. House and Senate leaderships will probably reconcile differences and roll their versions of the bill into an “omnibus” appropriation, combining bills funding much of the federal government. This should happen before the next deadline for approving a 2022 budget (December 3, according to the most recent “continuing resolution” that is currently keeping the government funded at 2021 levels).

Links

• A New York Times scoop finds that during the spring of 2020, Donald Trump’s White House advisor Stephen Miller sought to send 250,000 troops—more than half of the active-duty U.S. Army—to the border with Mexico. Trump even “pressed his top aides to send forces into Mexico itself to hunt drug cartels.” The proposal was relayed directly from the Department of Homeland Security to the U.S. Northern Command, bypassing the office of Defense Secretary Mark Esper who, “alarmed,” quashed it.
• According to ABC News, CBP reported “over 470 deaths” of migrants on U.S. soil during fiscal 2021. This is a very large number: the agency’s records since 1998 show a high of 492 in 2005 followed by 471 in 2012, and its count is much lower than those of local organizations dealing with migrant deaths. A likely explanation for the increase in deaths is more migrants traveling in hazardous areas in an effort to evade Title 42 expulsion. The Guardian profiles Lenilda dos Santos, a nurse from Brazil’s impoverished north who perished of dehydration in the desert near Deming, New Mexico in September. It was her second attempt to reach the United States after being detained and deported in April.
• At his confirmation hearing, the Biden administration’s nominee for CBP commissioner, Tucson Police Chief Chris Magnus, voiced support for maintaining Title 42 and for some additional border barrier construction, citing “some gaps where that could make sense.” On questions of CBP’s troubled organizational culture, he said, “I have a long history of transparency and sharing things with the public, whatever the outcome may be, because I think this is how you sustain and build trust.” Magnus refused to go along with Republican senators’ efforts to get him to call the situation at the border a “crisis.” He is expected to be confirmed with few or no Republican senators’ votes.
• The attorneys-general of Texas and Missouri, who already sued (so far successfully) to reinstate the Remain in Mexico program, have filed suit in federal court again, this time seeking a preliminary injunction to force the Biden administration to spend appropriated money to build Donald Trump’s planned border wall. This suit would presumably be rendered irrelevant if Congress rescinds past-year border wall funds, as discussed above.
• NBC News and EFE reported that mostly Haitian and Central American migrants stranded in Mexico’s southern border-zone city of Tapachula, Chiapas are holding vigils and planning a “caravan” across Mexico, which would leave on Saturday the 23rd. Activists working with the migrants state that the caravan will head to Mexico City, seeking legal permission for migrants to move about within Mexican territory, rather than being confined to Tapachula. Mexico’s National Human Rights Commission (CNDH) issued protection measures requesting state and federal authorities to respect the migrants’ rights during their journey. This news also provoked concerns over a possible surge in migrant arrivals at the U.S. border. No migrant caravan has succeeded in getting beyond Chiapas since late 2018, however, as Mexican security forces have stopped or dispersed them, at times brutally. There is little reason to believe that this caravan’s outcome would be much different. The caravan announcement is one of a series of actions by migrants seeking for COMAR, Mexico’s refugee agency, to speed the resolution of their asylum requests.
• At TruthOut, Sandra Cuffe reports from El Ceibo, the tiny border town in Petén, Guatemala that has received more than 14,000 expelled Central American migrants and asylum seekers—many or most of them flown from the United States to southern Mexico—in the past two months.
• In Corinto, Honduras, just over the border from Guatemala, Honduras’s Criterio and Contra Corriente relate tragic stories of migrants who made it all the way to the U.S. border only to be expelled to Mexico, then expelled by Mexico to Corinto. Often, as happened with 11 busloads of people on October 14, the expelled migrants arrive in Corinto during pre-dawn hours when no officials are there to receive them. Most did not realize, and weren’t told, that they were being sent back to the country they had fled. Mexico has returned 8,000 Hondurans to Corinto in the past month (some of whom were apprehended in Mexico, not the United States).
• Mexico’s migration agency (INM)—whose monthly record of migrant apprehensions, set in June 2019, is 31,396, or about 1,000/day—reported “identifying” 1,957 undocumented migrants in a single day on October 15.
• NPR reports on how social media and smartphones have changed the face of northbound migration. “In Facebook, they mostly use groups, finding information about the route, about if someone died or sharing U.S. news, like if Biden said something about the border, about if it’s open or if it’s closed or if they’re taking in families,” says reporter Luis Chaparro.
• Panama’s foreign minister tells Spain’s El País that 105,000 people have passed through her country so far this year, most of them through the hazardous jungles of the Darién Gap, a region once thought to be impenetrable. By the end of the year, she adds, “we believe we’re going to exceed 150,000, which is a really troubling number.” That’s up from 20,000 in 2019 and 8,000 in 2020.
• Colombia’s migration authority reports encountering 90,610 undocumented migrants passing through its territory so far this year, up from 3,922 in the pandemic border-closures year of 2020.
• A data-heavy update from the International Organization for Migration finds that 10,831 people were expelled or repatriated back to Haiti between September 19 and October 19. The United States expelled 7,915, followed by Cuba (1,194), the Bahamas (1,031), Mexico (248) and Coast Guards’ maritime interdictions (406).

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.

Biden administration, complying with court order, will soon restart “Remain in Mexico”

Rep. Henry Cuellar (D), who represents Laredo, Texas, said October 13 that the Biden administration would roll out a revived “Remain in Mexico” program, as ordered by a Texas judge, “within the next month or so.” According to CQ/RollCall’s Suzanne Monyak, Cuellar said “That means that you’ll see the tents in the Laredo area be expanded.” By “tents,” the congressman was referring to temporary facilities by the port of entry where, during the Trump administration, asylum seekers forced to remain in Mexico attended their immigration hearings via videoconference.

The term “Remain in Mexico” refers to the so-called “Migrant Protection Protocols (MPP),” a program begun by the Trump administration in late 2018 and early 2019. It sought to deter and discourage would-be asylum seekers by forcing more than 71,000 of them to await their U.S. hearing dates on Mexican soil, where many were subjected to kidnapping, assault, and other crimes. Candidate Joe Biden criticized this program, and his administration quickly terminated it. On August 13, though, Amarillo, Texas District Court Judge Matthew Kacsmaryk (a Trump appointee), responding to a suit brought by the Republican attorneys-general of Texas and Missouri, ordered the Biden administration to restart Remain in Mexico. The Supreme Court upheld this order while lower-court appeals continue.

At midnight on October 15, the Biden administration submitted its latest monthly filing, required by Judge Kacsmaryk, on the steps it has taken to restart the controversial program. The document reports that the Department of Homeland Security (DHS) has been “recreating the administrative, personnel, physical, and policy framework necessary to operate MPP and are prepared to re-implement MPP in mid-November, subject to Mexico’s decision to accept those that the U.S. seeks to return.” It adds that “multiple discussions” have taken place with Mexican authorities, who would have to receive the asylum-seekers, about a re-start. Further, the filing notes that construction of Remain in Mexico hearing facilities has begun in Laredo and Brownsville, Texas, as Rep. Cuellar had partially indicated, at a cost of $14.1 million.

Mexico has not yet agreed to take back migrants subject to the Remain in Mexico program. It has not refused, either. A brief October 15 statement from Mexico’s Foreign Ministry expresses “concerns” about the program and about how the United States has implemented Title 42 pandemic-related migrant expulsions (discussed below), but notes that “Mexico will continue the dialogue.”

If the Biden administration finds itself implementing both Remain in Mexico and Title 42 at the same time, a possible result might be a two-tier system in which Mexico’s border towns receive two classes of non-Mexican migrants. The first class would be citizens of Mexico, El Salvador, Guatemala, and Honduras, who might be expelled under the public health authority without even a chance to seek asylum. The second would be Spanish or Portuguese-speaking residents of the “other” countries, many of whom have been arriving in greater numbers lately, as discussed in a section below: Brazilians, Colombians, Cubans, Ecuadorians, Nicaraguans, and Venezuelans. Right now, Mexico does not accept citizens of these countries as Title 42 expulsions—but under a revived “Remain in Mexico” program, Mexico might receive them as people with pending asylum cases. Those from Mexico and the northern triangle would not have pending asylum cases due to Title 42.

U.S. asylum advocates have issued scathing responses, arguing that the Biden administration has had other options to keep from complying with the court order to re-start Remain in Mexico, such as more swiftly issuing a new memo to “re-terminate” the program with clearer wording about its decisionmaking process.

• “Trump 2.0 policies at the border are a recipe for continued cruelty, disorder, and violations of refugee law,” Eleanor Acer of Human Rights First told The Hill. “The Biden administration must honor its promise to terminate this horrific program.”
• “The Biden administration has had nearly two months to issue a new memo that addresses the district court’s concerns and formally terminate the MPP program for good,” said Jorge Loweree of the American Immigration Council. “The fact that it has not done so and is instead moving forward with plans to restart the program in November is a betrayal of the president’s campaign promises.”
• “There is no humane way to implement a program that was intended by [Trump advisor] Stephen Miller as a way to torture asylum seekers as deterrence model after the national outcry to family separation,” tweeted advocate Alida García, who spent a short stint this year as a White House senior advisor for migration.

Official border crossings to reopen to vaccinated travelers, but “Title 42” persists

DHS Secretary Alejandro Mayorkas announced on October 12 that next month, after 19 months of pandemic-related closures, the United States’ land borders will once again open to documented foreign travelers coming for “non-essential” reasons—as long as they have proof of COVID-19 vaccination. Starting in early November, tourists or people visiting family members will once again be able to enter the United States from Mexico and Canada.

Those who enter will need to present paper or digital proof of having received a full dose of a vaccine approved for emergency use by the World Health Organization. Unlike those who arrive by air, those entering by land will not have to provide proof of a recent negative COVID-19 test.

The pandemic travel restrictions had reduced documented border crossings significantly. 92 million people or cargo vehicles crossed into the United States from Mexico during the first 6 months of 2021, a one-third reduction from 136 million in the first 6 months of 2019.

As it ends pandemic restrictions on documented border crossers, DHS is keeping in place the so-called “Title 42” policy of swiftly expelling undocumented border crossers, including people seeking asylum. A Biden administration official told CBS News that “the policy considerations are different because migrants are generally held in Border Patrol facilities where social distancing can’t be enforced.”

Between February and August 2021, the Biden administration’s DHS expelled undocumented migrants 704,019 times at the U.S.-Mexico border. 92,676 of them were traveling as families (parents and children). Mexicans and many citizens of Central America’s “northern triangle” countries were pushed back across the border into Mexico. Others, like nearly 8,000 Haitians since September 19, have been flown back to their countries, often in shackles or occasionally worse.

New data obtained by CBS News show that while DHS has carried out more than 1,163,582 expulsions since the Trump administration imposed Title 42 in March 2020, the agency has permitted only 3,217 asylum seekers to petition for protection in the United States, using the higher evidentiary standards of the UN Convention Against Torture. Of these, only 8 percent (272) passed their interviews.

“It’s a heartbreaking thing to see” the expulsions of “individuals who are seeking a better life,” Mayorkas told a conference in Qatar this week. But he insisted that “the Title 42 authority is a public health authority. And it is not an immigration policy. It is not an immigration policy that we in this administration would embrace. But we view it as a public health imperative as the Centers for Disease Control has so ordered.”

Public health experts dispute that. “It’s clearly something that is politically expedient and I think that’s dangerous,” Michele Heisler, the medical director at Physicians for Human Rights, told the American Prospect. Added Paul Spiegel of the Johns Hopkins Center for Humanitarian Health, “This is not a public-health issue, it’s a lack of immigration policy and I think we know that, and we can’t let them keep on.”

Harold Hongju Koh, a senior adviser on the State Department’s legal team, shared this assessment. A former dean of Yale University’s Law School and former assistant secretary of state for Democracy, Human Rights, and Labor, Koh resigned his post on October 4, two days after issuing a memo calling the Title 42 policy “illegal and inhumane,” concluding, “It simply is not worthy of this Administration that I so strongly support.”

Yale Law School’s Lowenstein Project, together with 13 non-governmental organizations, submitted an emergency petition to the OAS Inter-American Commission on Human Rights (IACHR) seeking precautionary protection measures for 31 asylum seekers subject to Title 42. “These expulsions,” it reads, “mark persons returned to Mexico as migrants trapped in Mexico, rendering them particularly vulnerable to this rampant violence, including kidnapping, sexual assault, extortion, and other forms of abuse at the hands of organized criminal groups and corrupt authorities.” Lee Gelernt, the ACLU attorney leading one of the main legal challenges to Title 42 in U.S. federal court, noted in the American Prospect that “evidence the organization submitted in trial court indicated that 20 percent to 40 percent of families [expelled under Title 42] are kidnapped by cartels.”

Aftermath of the Biden administration’s mass expulsion of Haitians

As covered at length in our September 27 update, for several days in mid-September a remote sector of the U.S.-Mexico border in Del Rio, Texas saw the sudden arrival of nearly 15,000 mostly Haitian migrants, nearly all of them seeking to turn themselves in to U.S. authorities and request asylum. The Biden administration dealt with the influx by applying Title 42, expelling most of those who did not return to Mexico.

Immigration and Customs Enforcement (ICE) paid GEO Group, a controversial private prison and immigrant detention center operator, over $15 million to operate a swift tempo of flights expelling migrants back to Port-au-Prince and Cap Haïtien, Haiti. Most of those expelled via air had not lived in Haiti in a long time: they had fled to South America in the years after a devastating 2010 earthquake, living and working in Brazil, Chile, and elsewhere until the pandemic caused employment to dry up. They then braved the dangers of the multi-country journey northward—including Panama’s treacherous Darién Gap jungles—only to be shackled, placed on aircraft, and returned without any chance to ask for protection in the United States.

The expulsion flights began on September 19. Since then—according to Tom Cartwright, who monitors flights for Witness at the Border—there have been 74 flights expelling about 7,900 people to Haiti. The pace appears to be slowing as the number of Haitians in custody has no doubt declined. By comparison, Cartwright points out, the United States repatriated just 5,659 Haitians over the 40 months between January 2018 and April 2021. Counting people sent to Haiti from Mexico, Cuba, the Bahamas, and intercepted at sea, the International Organization for Migration counts 10,218 expulsions and returns since September 19.

It remains unclear how such a large number of Haitians made it all the way across Mexico virtually undetected in mid-September, just weeks after Mexican security and immigration forces harshly blocked four mass attempts to leave the southern state of Chiapas. Alfredo Corchado of the Dallas Morning News looked into it and found “a well-organized effort by human smuggling organizations facilitated through social media, and by Mexican authorities who either looked the other way or were simply overwhelmed.” Ruben Figueroa of the Movimiento Migrante Mesoamericano told Corchado of Haitians suddenly being allowed to board vehicles in the southern border-zone city of Tapachula, Chiapas, where Mexican forces had earlier been confining them. “This just doesn’t happen without the complicity of government authorities,” Figueroa said.

Tens of thousands of migrants from Haiti and other countries remain in Tapachula. There since late September, Mexico’s overwhelmed refugee agency (COMAR) has been attempting to process roughly 2,000 asylum seekers per day at the city’s soccer stadium.

Further south, the number of mostly Haitian refugees waiting in Colombia’s Caribbean coast town of Necoclí to board ferries to Panama’s dangerous Darién Gap region has risen to 22,000, up from the 17,000 to 19,000 noted in our October 4 update. Colombian migration authorities report at least 82,000 arrivals in Necoclí since January. Panama’s National Migration Service counted 88,514 emerging through the Darién as of late September, according to Reuters. Of those, 19,000 were minors, perhaps half of them under the age of 5, according to UNICEF.

Journalists continue to document the extreme dangers of the 60-mile pedestrian journey through the Darién, which was once regarded as nearly impenetrable. NPR’s John Otis accompanied a lone Cuban migrant for the start of the trip, before he crossed into Panama, in an audio report posted October 11.

In Colombia, where Secretary of State Antony Blinken is to visit next week for a “high level dialogue,” President Iván Duque said he plans to ask the Biden administration to send messages to Haitian migrants that would “minimize expectations” of being granted protection in the United States.

More scrutiny of migrants from beyond Mexico and the Northern Triangle

In August 2021, 29 percent of migrants U.S. authorities encountered at the U.S.-Mexico border were from countries other than Mexico, El Salvador, Guatemala, or Honduras. That, to the best of our knowledge, is the first time this has happened before.

The Haitians discussed above are part of this population, but so are migrants from South America who have been flying into Mexico—which since 2018 has not required visas for several South American countries—then traveling to the U.S. border, crossing, and requesting asylum. During the first 11 months of fiscal 2021 (October-August), CBP reports encountering 46,410 migrants from Brazil, 88,786 from Ecuador, and 37,859 from Venezuela. In most cases, U.S. authorities do not expel citizens of these countries under Title 42: Mexico has not agreed to take them, and long flights would be expensive. A Wall Street Journal article portrayed these new arrivals as “middle-class migrants.” Reporter Alicia Caldwell spoke to a dozen Venezuelans who arrived together near Yuma, who said that their entire journey took about two days.

Reuters reported on Brazilian authorities’ June arrest of a businessman accused of charging would-be migrants nearly $20,000 each to be smuggled into the United States via Mexico. “To pull it off, [Chelbe] Moraes has constructed an international network that includes corrupt cops and officials as well as U.S-based family members,” allegedly coaching clients to pose as tourists in Mexico,” the report reads.

U.S. Sen. Lindsey Graham (R-South Carolina) raised eyebrows by telling Fox News that, on a recent trip to Yuma, he had seen Brazilian migrants “headed for Connecticut wearing designer clothes and Gucci bags.” Attempting to clarify his comments to the Washington Post, Graham said, “Usually when you go to the border, you see people who are dressed really haggardly and who look like they’ve been through hell. This time at Yuma, there were dozens that looked like they were checking into a hotel — and smartly dressed.”

At the United States’s behest, Mexico is now tightening visa requirements for citizens of Brazil and Ecuador. Guatemala, too, has begun requiring visas of Ecuadorians.

Links

• At ProPublica, Dara Lind reports on a new DHS Inspector-General report about a CBP intelligence unit that targeted U.S. citizen activists and journalists it suspected of association with migrant “caravans” in 2018 and 2019. “[A]t least 51 U.S. citizens were flagged for interrogation—often based on evidence as flimsy as once having ridden in a car across the border with someone suspected of aiding the caravan.” As its name indicates, CBP’s “Tactical Terrorism Response Team” was created to respond to terrorist threats, not migration events.
• The Senate Finance Committee will meet October 19 for the nomination hearing of Tucson, Arizona police chief Chris Magnus, the Biden administration’s choice to be CBP commissioner. Magnus’s nomination has been delayed by Sen. Jeff Merkley (D-Oregon), who was demanding that CBP first provide more information about role the agency played in combating protesters in Portland in 2020, during the Trump administration.
• Mexico captured 652 migrants at a military checkpoint in southern Tamaulipas state on October 7. 101 of them were unaccompanied minors from Guatemala, whom Mexico’s National Migration Institute (INM, the government’s immigration authority) expelled days later.
• Border Report cites rumors of a “mother of all caravans” being organized by unnamed “activists” for October 23 in Chiapas, southern Mexico. We have seen no other source corroborating this rumor, and colleagues in southern Mexico say they haven’t heard anything.
• “There is a growing gulf between the progressive immigration values President Joe Biden professes and the enforcement policies he’s implementing at the border,” reads an analysis by Vox immigration reporter Nicole Narea, “and it’s led to confusion among immigration officials, uncertainty for migrants, and questions about whether the president has a coherent strategy on immigration at all.”
• “To be a Haitian asylum-seeker knocking at the door of the U.S. is to stand at perhaps the most visible convergence of race and empire imaginable in this hemisphere,” writes Miriam Pensack at The New Republic.
• A retired rear admiral is replacing a retired army general as the head of Mexico’s INM in the northern border state of Chihuahua.

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. Due to staff travel, there will be no update next week; we will return on October 15.

Haitian migrants: Biden administration carries out an aerial expulsion campaign of historic proportions

By September 24, U.S. authorities had cleared the large encampment of mostly Haitian migrants near the Rio Grande in Del Rio, south-central Texas. Between September 9 and then, the Department of Homeland Security (DHS) told Border Report, Customs and Border Protection (CBP) and Border Patrol had encountered 30,000 migrants in CBP’s once-quiet Del Rio Sector, most of them from Haiti.

According to DHS Secretary Alejandro Mayorkas, 8,000 of these 30,000 crossed back into Mexico. About 13,000 were processed into the United States: about 3,000 sent to Immigration and Customs Enforcement (ICE) detention centers, and about 10,000—presumably mostly families with children—released into the U.S. interior to pursue asylum claims in the U.S. immigration system. As of the middle of this week, about 4,000 were still in DHS custody being processed, at which point officials would determine whether migrants get released, detained, or expelled, under the “Title 42” pandemic authority, back to Haiti without a chance to seek asylum.

It is not clear how DHS is determining which migrants get released, detained, or expelled. “Officials have said families with vulnerabilities could be exempted from Title 42 (pregnancy, medical issues),” tweeted Camilo Montoya-Galvez of CBS News. Another factor in favor of release, the New York Times indicated, is the ability to “produce evidence of a friend or relative who could help provide a foothold.”

The Biden administration’s effort to expel as many Haitians as possible has been massive. By the end of September 30, the U.S. government had expelled 6,131 Haitians on 57 flights to Port-au-Prince or the northern city of Cap-Haïtien, Haiti over 12 days. Seven flights landed on September 30 alone, discharging 773 expelled Haitians. Of the first 50 flights, the International Organization for Migration (IOM) reported, 32 had gone to the capital and 18 to Cap-Haïtien. About 44 percent of those expelled were women and children.

In the 12 months before September, ICE ran 57 removal flights to Haiti, according to the count kept by Witness at the Border. We have now seen 57 flights in 12 days.

More than 210 of the children expelled with their Haitian parents were born in Chile, Brazil, Venezuela, or Panama. Nearly all of the Haitians who arrived in Del Rio had not lived in Haiti in a long time: they had migrated to South America in the years after a 2010 earthquake devastated their home country. Many found Brazil and Chile, in particular, to be inhospitable, with legal status difficult to obtain or maintain. (Anti-migrant sentiment, in this case against Venezuelans, erupted in Chile’s northern city of Iquique on September 25. A march against migrants grew violent as protesters built a bonfire of homeless Venezuelans’ belongings.)

The journey from South America leads up through Panama’s Darién Gap jungles, Central America, and Mexico. Analysts and local officials voiced surprise that such a large number of migrants could cross Mexico, and arrive in the small city of Ciudad Acuña across from Del Rio, in such a short time. What we know is that the migrants crossed Mexico in small groups, often taking public transportation and paying a premium in artificially high fares, and in bribes at Mexican authorities’ road checkpoints. Writing for Politico, Jack Herrera reports that a rumor spread among Haitians that U.S. authorities were allowing crossings in Calexico, California, and Del Rio, and that September 16—Mexico’s bicentennial independence day, when authorities might be distracted—would be a good time to travel.

Giuseppe Loprete, the head of the IOM mission in Haiti, noted Haitians’ extreme anguish upon return to a country that most had fled years earlier. “They’re very distressed,” he told CBS. “They start crying the moment they arrive. I’ve seen young, strong guys—some freak out. Women cry. Kids cry because they see the women crying.” IOM is distributing meals, toiletries and a roughly $100 per person stipend to returned Haitians, and is testing them for COVID-19, which the U.S. government does not do. The U.S. Agency for International Development (USAID) “said it is providing $5.5 million to IOM so it can serve deported Haitians,” according to CBS.

Ultimately, though, Haitians arriving in Port-au-Prince are being ushered out of the airport into what the Associated Press calls “an archipelago of gang-controlled islands in a sea of despair.” A strong statement from IOM and three UN agencies paints a very grim picture of an already-struggling country, the hemisphere’s poorest, that since July has seen its president assassinated, a devastating earthquake, and a tropical storm:

Haiti continues to face an escalation in violence and insecurity, with at least 19,000 people internally displaced in the capital Port-au-Prince in the summer of 2021 alone. Well over 20 per cent of girls and boys have been victims of sexual violence. In addition, nearly 24 per cent of the population, including 12.9 percent who are children, live below the extreme poverty line of US$1.23 per day. Some 4.4 million people, or nearly 46 per cent of the population, face acute food insecurity.

IOM, the UN Refugee Agency (UNHCR), the United Nations Children’s Fund (UNICEF) and the UN Human Rights Office (OHCHR) called “on states to refrain from expelling Haitians without proper assessment of their individual protection needs,” recalling that “International law prohibits collective expulsions and requires that each case be examined individually to identify protection needs under international human rights and refugee law.” That is the opposite of how Title 42, which affords no opportunity to ask for asylum, is operating.

Reuters reports that IOM asked Brazil to receive some Haitians who have Brazilian-citizen children, or who passed through Brazil on their way north through South America. Two sources “said the first request was more likely to be approved.” A DHS statement notes that the agency is engaging with Brazil and Chile “to ensure they too are doing their part to offer protection for vulnerable populations and receive individuals who had legal status there.”

That statement adds that DHS Secretary Mayorkas met on September 28 with Haiti’s ambassador to the United States, Bocchit Edmond. Mayorkas thanked Haiti’s government “for supporting the safe return and re-integration of Haitian nationals.” He added that investigations of mistreatment of Haitian migrants “is ongoing”; Edmond had raised the shocking and widely shared photos and videos of mounted Border Patrol agents running down migrants on the banks of the Rio Grande in Del Rio.

No State Department official of similar rank was present at the Haitian ambassadorial meeting, but the newly confirmed Assistant Secretary of State for Western Hemisphere Affairs, Brian Nichols, traveled to Port-au-Prince September 30 with the National Security Council’s director for the hemisphere, Juan González. The visit appeared mostly focused on Haiti’s political impasse; the Miami Herald reported that “the duo said they had no agenda other than to listen to Haitians.”

Haitians in Mexico

Mexico’s government carried out its first removal flight to Haiti in some time, flying 70 Haitian migrants, including 13 minors, to Port-au-Prince on September 29. Mexico’s National Migration Institute (INM) called this an “assisted voluntary return” of Haitians who desired to go back to their country, or who at least had not voiced a desire to seek asylum in Mexico. It referred to those aboard as “the first group,” but it is not clear how frequently the INM plans to run these flights. Mexico reported deporting 223 Haitians in the first 8 months of 2021, 138 of them in August.

This flight occurred after a September 23-24 visit of Haitian authorities to Mexico’s southern border zone, where they toured INM installations and agreed to re-activate aerial removals. Those aboard the September 29 flight had been living in the southern border state of Tabasco, or in central Mexico. They had not been to the U.S. border, and had not been living in the southern border-zone city of Tapachula, where most Haitians in Mexico are currently stranded as they await decisions from the country’s backlogged asylum system.

Mexico’s foreign secretary, Marcelo Ebrard, told a committee of the country’s senate that his government plans to provide refuge to about 13,255 Haitian citizens. “What will Mexico’s position be? That those who want refugee status will be granted it. Mexico is one of the countries that least rejects refugee status,” Ebrard said. The chief diplomat condemned excessive use of force by INM agents and National Guard personnel in the southern state of Chiapas in early September.

As noted in our September 3 and 10 updates, photo and video evidence showed Mexican personnel kicking, beating, and aggressively chasing Haitian migrants who had sought to walk northward from Tapachula, a city of 350,000 that offers them few income opportunities while they await asylum decisions from COMAR, Mexico’s refugee agency. The OAS Inter-American Commission on Human Rights added its condemnation, and urged Mexico to hold responsible personnel accountable, in a September 27 statement.

COMAR is taking steps to speed asylum processing in Tapachula, where 55,000 people had requested asylum between January and August. For the next four weeks, COMAR is managing a reception center outside Tapachula’s soccer stadium, where it plans to process 2,000 people per day, using about 200 staff, many seconded over from other agencies.

In August, Chiapas Paralelo estimated that as many as 30,000 Haitians were stranded near Mexico’s southern border with Guatemala, especially in the city of Tapachula. After so many fled to Del Rio, it’s not clear how many remain in Tapachula awaiting COMAR’s response; the agency is requiring all to check in at the stadium in order to remove inactive cases from its giant backlog.

On October 1 Andrés Ramírez, COMAR’s coordinator, tweeted that 90,314 people had requested asylum in Mexico between January and September, shattering the country’s previous full-year record of 70,423 set in 2019. At this pace, Ramírez pointed out, Mexico will receive 120,000 asylum requests by the end of 2021. More than one-third of Mexico’s asylum seekers so far this year are Honduran (31,884), followed by Haiti (26,007), Cuba (7,683), El Salvador (5,170), and Venezuela (4,670). COMAR also shows 3,591 Chileans and 1,691 Brazilians: many of these are probably children born in those countries to Haitian parents.

Haitians who remain in and around Ciudad Acuña, across from Del Rio, are under strong pressure from Mexican authorities to relocate or return to Tapachula, to await COMAR’s decisions on their status. INM has arranged transport for many to return to the southern city. Reuters notes that a growing number of Haitians are arriving elsewhere at Mexico’s northern border: in Tijuana, where a few thousand of their fellow citizens settled after a 2016 migration event. This population is generally doing well economically, but “most are wary of going public about their achievements lest it cause them problems with migration authorities or attract the attention of organized crime.”

Elsewhere in northern Mexico, in Tampico, Tamaulipas, some Haitian migrants protested outside the local INM office demanding that they be granted some legal status, without which the city’s hotels are prohibited from even renting them rooms.

The Darién Gap

Further south along the migration route, perhaps 17,000 to 19,000 people, mostly Haitians, remain crowded into the small Caribbean coast city of Necoclí, Colombia. For migrants who wish to pass through Panama and northward, Necoclí is where the road ends. Migrants must take a ferry across northwestern Colombia’s Gulf of Urabá, then cross into eastern Panama’s treacherous Darién Gap jungles.

Our September 10 update noted that 11,400 migrants were in Necoclí, with the town’s mayor predicting that “by the end of September we’re going to have more than 25,000 migrants.” That prediction wasn’t far off.

An agreement between Colombia and Panama is allowing ferries to take 500 people per day to Panama—but estimates of the number of people newly arriving in Necoclí range from 1,000 to 1,200 to 1,500, so the population in Necoclí keeps growing as the wait time for a ferry passage stretches through the end of October. That means a month camped on the town’s beach or paying $10 a night for a shared room, as townspeople charge migrants high prices for food, water, restroom access, and supplies for the journey through Panama. Some migrants are paying smugglers to take them across the Gulf clandestinely.

A handful of Haitians—perhaps 250, according to Colombia’s human rights ombudsman’s office—have decided to abandon their journey after seeing the Biden administration’s big expulsion flight push.

“So far this year,” Reuters reports, “88,514 migrants have entered Panama through the Darien jungle, according to figures from the National Migration Service, and Panama went from receiving an average of 800 migrants in January to 30,000 in August.” About 70 percent of them have been Haitian.

The idea of this many people passing through the Darién Gap is unheard of. This Connecticut-sized jungle zone, where the Pan-American highway ends and government presence is nearly zero, is notorious for the dangers it poses—both natural and criminal—to those who attempt the 60-mile, several-day walk. For a harrowing account of this region’s dangers, see “When Can We Really Rest,” an April 2020 report in California Sunday that won Canadian journalist Nadja Drost the 2021 Pulitzer Prize for feature-writing.

The Darién provincial prosecutor’s office has recorded the bodies of 41 migrants found along the region’s rivers so far this year. The Wall Street Journal, citing Doctors Without Borders and other sources, documented an epidemic of rapes of migrant women at the hands of criminals who operate freely in the zone. Still, as nearly a third of migrants U.S. authorities now encounter at the U.S.-Mexico border are coming from places other than Mexico or Central America’s northern triangle, we can expect even greater numbers of migrants from Haiti and elsewhere to attempt the journey through the Darién.

“Remain in Mexico” and Title 42 in the courts

On September 29 DHS announced its intention to issue a new memo terminating the Migrant Protection Protocols, or “Remain in Mexico” (RMX) program. RMX was a Trump administration initiative that forced over 71,000 non-Mexican asylum-seeking migrants to await their immigration hearings while living in Mexican border towns for months or years. The Biden administration terminated RMX on inauguration day, and formally terminated it in a June 1 memo. However, a lawsuit from the Republican attorneys-general of Texas and Missouri convinced a Texas district judge to force the Biden administration to restart the program, and the Supreme Court left that order in place pending appeals. (See our August 27 update for the full story.)

The ruling left the Biden administration compelled to implement a policy it bitterly opposes. Opponents of RMX, who cite at least 1,500 attacks and kidnappings suffered by migrants forced to remain in Mexican border cities, have contended that the administration might satisfy the courts’ conditions by issuing a new memo terminating the program, one that does more to explain its legal reasoning. That is the step that DHS announced this week.

The “re-termination” memo won’t necessarily stop the reimplementation of RMX for the time being, however. “A new memorandum terminating MPP will not take effect until the current injunction is lifted by court order,” the September 29 DHS statement explains. In the meantime, the Department must continue to show the Texas court that it is working “in good faith” to restart the program. That means ongoing diplomatic talks with Mexico about accepting other countries’ asylum seekers again, and building up staffing and “tent court” infrastructure near border crossings to handle cases.

Speculation continues that these “good faith” efforts could lead to some sort of “Remain in Mexico lite” that forces a smaller number of asylum seekers to wait in Mexico, but with “better living conditions and access to attorneys,” as Politico put it.

Even with RMX on hold, the “Title 42” pandemic expulsions policy continues to send large numbers of would-be asylum seekers either to their home countries (like expelled Mexicans, or the massive Haiti flights) or to Mexico in the case of citizens of El Salvador, Guatemala, and Honduras. As noted in our September 17 update, on the 16th, U.S. District Judge Emmet Sullivan ruled that Title 42 could not be used to expel asylum-seeking families.

This victory for migrant rights groups has been followed by disappointment. Judge Sullivan delayed his ruling’s implementation for two weeks, to give the Biden administration—which used Title 42 to expel more than 92,676 family unit members between January and August—a chance to respond. On September 30, just as Sullivan’s ruling was to go into effect, a panel of three Washington, DC Circuit Court judges (appointees of Clinton, Obama, and Trump) stayed its implementation pending the outcome of the Biden administration’s appeal. As oral arguments on the appeal are scheduled for January, the Biden administration is free to expel asylum-seeking families well into 2022.

The Trump administration developed the Title 42 expulsions policy at the pandemic’s outset in March 2020, and the Biden administration has maintained it, although it no longer applies it to unaccompanied children. The policy has been roundly condemned by human rights and migrant rights groups, medical experts, and the UNHCR. Human Rights First has tracked “at least 6,356 kidnappings, sexual assaults, and other violent attacks against people blocked at ports of entry or expelled to Mexico by DHS since President Biden took office.” The ACLU led the litigation to stop its application to families, leading to Judge Sullivan’s September 16 ruling.

Officials like DHS Secretary Mayorkas insist that Title 42—which allows quick expulsions and thus less contact with possibly infected migrants—remains necessary due to COVID-19’s continued prevalence. “The pandemic is not behind us. Title 42 is a public health policy, not an immigration policy,” he told NBC’s Meet the Press on September 26. Mayorkas told a September 27 Migration Policy Institute conference that the migrant population has had “a rate of illness of approximately 20 percent.”

Mayorkas has publicly insisted that Title 42 is a public health measure and not an “immigration policy.” CBS News notes, though, that “in a court filing Monday [September 27] defending the continued enforcement of Title 42, Justice Department lawyers called the expulsion policy ‘a significant deterrent to the entry of family units.’” On a call this week with senior DHS officials, NBC News reports, Mayorkas also speculated that a termination of Title 42 for families could lead to “a worst-case scenario in which 350,000 to 400,000 migrants cross the border in October,” roughly double the high migration totals of July and August.

In a filing, several children’s and migrants’ rights groups urged the Fifth Circuit Court of Appeals to lift the court order forcing the Biden administration to reinstate RMX, citing the number of children that the program had subjected to “gang violence, attempted kidnappings and unsanitary conditions.” A September 28 Noticias Telemundo report published horrific accounts of torture, rape, and kidnapping suffered by more than 30 migrants expelled into Mexico between 2019 and 2021. Expulsions have also led to the death of asylum seekers who see no choice but to re-enter the United States. “Maria Eugenia Chavez, a Mexican national who twice crossed the border and asked the Border Patrol to file an asylum claim only to be returned to Mexico under Title 42, drowned off the coast of San Diego when the boat she was on fell apart on her third attempt to cross the border,” reads a September 28 tweet from the Immigrant Defenders Law Center.

The ACLU vows to continue pushing the Title 42 case. “I think litigation is as important in holding the feet to the fire of our quote ‘allies’ [in the Biden administration] as it is about fighting the foes of civil liberties and civil rights, because that is what creates the political will,” Executive Director Anthony Romero told the Associated Press. “The policies that they [Biden administration officials] are actively pursuing are very different than the ones they promised,” added Todd Schulte of FWD.us. “The policies they are actively pursuing are failing. Yet the continued direction is in the wrong direction.”

Texas’s crackdown overwhelms its courts

In Texas, where Gov. Greg Abbott (R) has loudly criticized the Biden administration’s border and migration policy from the right, the state government continues its own crackdown on migration. Abbott will double the Texas National Guard presence along the border, using state funds, to about 2,500 guardsmen by the end of October. Even after the Del Rio migrant camp was cleared, the Texas National Guard left 70 Humvees “prepositioned in the area in case a similar situation arises,” Stars and Stripes reported.

The guardsmen are in addition to a federal force of 3,500 National Guardsmen deployed along the entire border since 2018 to support CBP. The Texas Military Department posted a request for volunteers on social media, offering guardsmen who join the effort lodging and a $55 daily per diem. The Texas force will be building border barriers—a 10-foot chain link fence—mainly on private land with border landowners’ permission. About three miles of fence have been built so far. This is all part of a $2 billion program of enhanced border security measures that Abbott, who is up for re-election in 2022, calls “Operation Lone Star.”

As part of that operation, National Guard troops—who are rarely given arrest authority on U.S. soil—arrested more than 2,000 undocumented border crossers, and reported seeing another 200 turn back into Mexico, in just the past week, a Texas official said on September 30. While Texas cannot charge its detainees with violating federal immigration law, it has jailed at least 1,000 single men since June for state crimes, nearly always trespassing. Detained migrants are being held in two prisons in central and south Texas (Dilley and Edinburg). As of September 27, the state prisons were holding more than 900.

This has not been an orderly process. On September 28 the state was forced to release 243 jailed migrants because they had not been formally charged with any crime within the 15-day deadline state law requires. The delay usually owes to the Texas state police force’s (Department of Public Safety) inability to produce arrest reports without long delays.

Texas RioGrande Legal Aid came to an agreement with counties’ prosecutors to release the migrants, 168 of whom had been held without charges for more than 30 days. Most don’t speak English and have “spent weeks or months with little to no legal help, few opportunities to talk to their families and often fewer chances to find out what is happening to them or how long they will be imprisoned,” the Texas Tribune reported.

Once Texas releases migrants—whether because they were uncharged, or because they have finished serving their jail time—they don’t necessarily end up in ICE custody; some may be released into the U.S. interior. “It is not clear how many people Immigration and Customs Enforcement might choose to take into custody, and the agency did not immediately clarify,” the Washington Post reported.

On another legal front, Florida Attorney General Ashley Moody filed a lawsuit September 28 seeking for the Biden administration to stop the practice of releasing migrants with pending cases, including asylum seekers, into the U.S. interior. This suit would seem to contradict laws giving DHS discretion about whom to detain, and legal precedents (like the 1997 Flores settlement agreement) limiting child and family detention. But the U.S. legal system has issued some surprising rulings on immigration lately, so it’s impossible to say with certainty that this legal challenge won’t move forward.

Links

• For the second time, the Senate’s Parliamentarian has dealt a blow to Democrats’ efforts to use budget legislation to allow about 8 million undocumented immigrants in the United States to apply for legal status. This proposal, Elizabeth MacDonough ruled, was not sufficiently budget-related. As a result, under Senate rules, the immigration legislation would need 60 votes to stop debate and move to a vote—that is, to block a Republican “filibuster.” Democrats hold 50 seats in the 100-seat Senate. Senate Democratic leaders are weighing next steps.
• Citing Freedom of Information Act documents that he had to fight to obtain, Bob Moore of El Paso Matters found that CBP often turned away asylum seekers at the El Paso port of entry in 2018, claiming they were “at capacity” even when the port had plenty of available space to hold them. “We knew, we knew, we knew (that the capacity explanation was untrue), and there was nothing that we could do about it,” said Ruben Garcia of El Paso’s Annunciation House shelter.
• “Migrant deaths from border wall falls have increased from four in 2020 to 12 this year as replacement border wall barriers increased in size under former President Donald Trump, according to the Southern Border Communities Coalition statistics,” writes Pedro Rios of the American Friends Services Committee. “There have also been hundreds of injuries, according to the Mexican Consulate. In a meeting between local San Diego advocates and then-Border Patrol Chief Rodney Scott in June 2018, which I attended, Scott shared that the Border Patrol purposely chose the height of new replacement border wall after it conducted psychological tests to establish at what height an average person becomes so disoriented that he or she would stop climbing a wall—30 feet.”
• A letter to Justice Department leadership and the DHS Inspector-General from Alliance San Diego alleges that former Border Patrol Chief Rodney Scott, who left his post in August, is violating the Ethics in Government Act. Scott established a consulting firm in July, while still working for Border Patrol, and issued a Facebook request for CBP and ICE personnel to provide information, possibly including restricted information, “to counter the lies and misinformation that the DHS Secretary and Biden officials spew.”
• “Today, while asking me about who I was visiting on my trip, a Border Patrol agent said I was being ‘coy’ with my answers and suggested that it would be possible that I am friends with—I kid you not—Osama Bin Laden,” tweeted Abdallah Fayyad, a member of the Boston Globe’s editorial board.
• “For the past decade,” writes Border Patrol critic Garrett Graff at the Washington Post, the agency’s “heavily armed and kitted-out agents have primarily faced a much different challenge that it’s proved itself repeatedly poorly equipped to handle,” that of processing protection-seeking migrants.
• Mexico’s chief prosecutor, Alejandro Gertz Manero, met with U.S. Attorney General Merrick Garland in Washington. “The two leaders reaffirmed their commitment to work closely on criminal investigations and prosecutions of cross-border crime,” reads a Justice Department statement, “including with regard to narcotics and firearms trafficking, human smuggling and trafficking, and illicit finance and money laundering.”
• Sen. Ron Wyden (D-Oregon) has lifted his hold on the nomination of Tucson Police Chief Chris Magnus to be the next commissioner of CBP. The nomination will begin advancing through the Senate Finance Committee (“Finance” because of CBP’s “Customs” role). Wyden had been demanding that CBP first provide information about the Trump administration’s violent deployment of border personnel to Portland, Oregon to confront protesters in 2020.
• “Relentless in its border crisis coverage, Fox News has influenced how other cable networks, such as CNN and MSNBC, talk about the border,” Sergio Muñoz of Media Matters for America said in an excellent narrative analysis by Melissa del Bosque at the Border Chronicle. “Major news outlets characterize the border as in crisis, playing into the right-wing narrative that it is a dangerous place and under constant assault, and that Trump’s policies, which effectively ended asylum, should remain in place.”
• A new Biden Administration initiative is providing government-funded attorneys to unaccompanied children facing deportation proceedings in eight U.S. cities.
• Once released from Office of Refugee Resettlement custody to family members or sponsors in the United States, many unaccompanied children face years in “a purgatory of insecurity and, on occasion, exploitation” as they wait years for their cases to be decided, writes immigration scholar Diana Gordon at the New York Review of Books.
• Expelled migrants, among them would-be asylum seekers, held a protest south of the borderline in Nogales, Mexico, on September 25. When a few participants in the protest tried to approach the U.S. port of entry to petition for asylum, CBP shut the automatic gates, sealing off the port.
• Two Mexican military vehicles carrying 14 soldiers crossed an international bridge into El Paso after midnight on September 25. CBP detained the soldiers, processed them, and sent them back to Mexico within hours. One was found to be possessing a small amount of marijuana. “The CBP (agents) yelled at the soldiers to put their hands up and drop their weapons immediately,” a witness told Reuters.
• “Just 35% of Americans approve of [Joe] Biden’s handling of immigration, down from 43% in April, when it was already one of Biden’s worst issues,” according to a new Associated Press-NORC Center for Public Affairs Research poll.