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 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.
- 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.