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.

This is likely the final Border Update of 2021. We look forward to resuming on January 7.

First migrants are returned under Remain in Mexico 2.0

The Biden administration’s court-ordered restart of the Remain in Mexico (RMX) program became reality this week in El Paso, the city where the Department of Homeland Security’s (DHS) get-tough border initiatives often get rolled out first.

As explained in last week’s and prior updates, Remain in Mexico (known formally as Migrant Protection Protocols or MPP) was a Trump administration initiative that forced 71,071 asylum-seekers to await their U.S. immigration hearings inside Mexico between January 2019 and January 2021. Most cases occurred before March 2020, when the “Title 22” pandemic measure made requesting asylum nearly impossible. At least 1,500 of these asylum seekers suffered violent attacks. Candidate Joe Biden pledged to end the program, and acted quickly to do so in early 2021. A lawsuit from the Republican attorneys-general of Texas and Missouri led to a Texas federal judge, in August 2021, ordering the Biden administration to carry out a “good faith” effort to restart Remain in Mexico. The Supreme Court refused to put a hold on that order while lower-court appeals continue.

Months of negotiations with Mexico culminated in a December 2 agreement to restart the program. Remain in Mexico is to restart at seven ports of entry, with a maximum of 30 people per day expected to be sent back into Mexico from each port. (That, if used maximally, would add up to more than 60,000 people per month; the Trump administration’s peak month, August 2019, saw 12,387 people made to remain in Mexico.) A court filing indicated that the program would restart on December 6; as of December 4, Border Patrol sources told south Texas’s Rio Grande Valley Monitor that the agency had not yet received guidance for how to implement it.

“More than 30 migrants had their asylum cases processed in El Paso this week,” the Washington Post reported on December 8. As of mid-day on Friday the 10th, we’ve seen 28 of them:

• Two single men, a Colombian and a Nicaraguan, sent across into Ciudad Juárez on the 8th. Their transfer, originally planned for the 7th, was delayed “after the process hit a temporary snag and coordination issues,” according to the Post. They have hearing dates in early January. The Nicaraguan migrant told Reuters that “he felt a little sad, but gave thanks to God that he was still alive.”
• Six adult men escortedover the bridge to Juárez, clad in DHS-issued sweatsuits, on the morning of the 9th. They are citizens of Cuba, Nicaragua, and Venezuela.
• As we write this update on the 10th, another 20 migrants have just been returned from El Paso to Ciudad Juárez, informs Julie Neusner of Human Rights First, who has been closely reporting developments on her Twitter account. As of 1:30pm eastern on the 10th, we don’t know these migrants’ nationalities; Neusner said they appeared once again to be single adult males.

In addition to likely logistical issues, the delay in rolling out the send-backs may have something to do with migrants being granted non-refoulement interviews. In a shift from the Trump-era program, Customs and Border Protection (CBP) officers must now ask whether those enrolled in Remain in Mexico fear being returned to Mexico. If they say “yes,” they are to have interviews with asylum officers after 24 hours of preparation in custody. In those interviews, they must prove a “reasonable possibility” of persecution and torture in Mexico; if they do, their asylum petitions may be processed inside the United States. Advocates like former WOLA executive director Joy Olson are skeptical: “When it comes to the US making exceptions for asylum seekers who are at risk if they remain in Mexico, I’ll believe it when I see it. Until now, even those who had previously been kidnapped in Mexico were returned when they tried to apply for US asylum.”

After release into Juárez, the International Organization for Migration (IOM) gives migrants COVID-19 tests and transports them to an approved shelter. For now, those shelters appear to be the Kiko Romero shelter run by the municipal government and the large Leona Vicario facility run by the federal government. The latter shelter housed several hundred Remain in Mexico subjects in 2019 and 2020.

Migrant rights advocates, including WOLA, are surprised by how robust a program the Biden administration is establishing at the Texas court’s obligation, given its professed opposition to Remain in Mexico. “The reimplementation of MPP by this administration is going well beyond what is required of them by court order,” Shaw Drake of the El Paso-based American Civil Liberties Union Border Rights Center told the Washington Post. Not only will Remain in Mexico operate at a large number of border crossings—including some across from the country’s most violent border cities—the Biden administration is applying it to a larger variety of nationalities than the Trump administration did.

While the Trump-era program made citizens of Spanish and Portuguese-speaking Latin America remain in Mexico, the Biden 2.0 program will apply to citizens of the entire Western Hemisphere, including Creole-speaking Haitian migrants. “This is going beyond good faith implementation of the court order,” a former Biden appointee told BuzzFeed. “When you add new populations and are doing it in addition to Title 42, you are intentionally implementing a program that you know is largely indistinguishable from the prior one and putting more populations in it.” DHS Secretary Alejandro Mayorkas, who insists that he opposes RMX, explained that because “the demographics along the border change with time,” any “good faith” implementation required adding Haitians.

Early indications show other similarities to the Trump-era program’s harsher aspects. CBP is once again sending migrants into Mexico without returning most of their clothing and belongings, purportedly because they “might be ‘carrying diseases,’” Neusner reports. She adds that CBP is once again requiring migrants to report at U.S. ports of entry for their court dates at 4:30 in the morning, a time when dark and empty border cities can be dangerous.

While the Biden-era program includes humanitarian adjustments, these “aren’t clear and haven’t materialized, and they most likely won’t comply with the needs of shelter, protection, or access to health care and legal assistance,” Tonatiuh Guillén, who headed Mexico’s National Migration Institute (INM) during the first months of the Andrés Manuel López Obrador administration, told the Post. Kennji Kizuka of Human Rights First notes in the same article that promises of humanitarian exceptions were routinely broken in 2019 and 2020.

A key concern is shelter space for individuals and families who may have to wait months inside Mexico for their hearings. Ciudad Juárez’s network of 27 mostly charity-run migrant shelters is already at 83 percent capacity, Sin Embargo reports. The municipal shelter’s capacity is 200, and it currently houses about 170 people. IOM data cited by the Spanish wire service EFE indicate that Tijuana’s 23-shelter, 2,967-bed network is 85 percent occupied. “We’re saturated, we practically can’t attend to anyone else,” José María García of Tijuana’s Juventud 2000 shelter told the local daily El Imparcial.

Father Francisco Gallardo, who manages shelters in Matamoros and Reynosa, told Animal Político that “for the time being they have not received any information or extra support to receive the migrants.” While the top official for North America at Mexico’s foreign ministry, Roberto Velasco, told an interviewer that about US$80 million in U.S. assistance would be forthcoming to assist migrants via international organizations, no figure has been published anywhere else, and word about shelter provision remains quite vague.

IOM will be providing transportation to shelters and to court hearings. The agency has also condemned RMX as “inhumane and contrary to international law.” For its part, the UN Refugee Agency (UNHCR) makes clear that it “was never involved in implementing MPP and will not be supporting the reinstated policy.” IOM is “pushing Mexico to provide migrants with documents and ID numbers that would allow them to work legally, open bank accounts and access services while they wait,” the Washington Post reports. However, during the Trump-era version of the program, Animal Político had found, only 64 of the 71,000 migrants forced to remain in Mexico had managed to secure formal employment.

Access to legal representation remains a concern. During RMX 1.0, “nearly 95% of people placed into MPP were unable to find a lawyer, compared to just 40% of people inside the United States,” according to Aaron Reichlin-Melnick of the American Immigration Council. This time, citing strong reluctance to return to the personal danger involved with representing RMX clients in dangerous Mexican border cities, most pro-bono attorneys are refusing to include their names on CBP handouts listing lawyers. “We have huge capacity limits and don’t want to be complicit in the restarting of MPP,” Linda Rivas of the El Paso-based Las Americas Immigrant Advocacy Center told CNN. “When they rely so much on the NGOs to make things happen, they try to justify programs that are inhumane and don’t restore asylum.”

Perhaps the most urgent unmet need is security. “A program that requires asylum seekers to remain in one of the most dangerous parts of the world while their cases are pending in U.S. immigration courts cannot guarantee their protection from persecution and torture, as required by U.S. law,” reads a December 2 letter from the U.S. asylum officers’ union. “That first half hour of return to Mexico is the most dangerous point,” Taylor Levy, an attorney who represented many RMX subjects in El Paso, told the Monitor. “That first half hour, that first hour, that’s where we see the most kidnappings. We see systematic kidnappings particularly in Tamaulipas, particularly in Nuevo Laredo.”

In response to these concerns, plans for RMX 2.0 indicate that those sent back into some of the most dangerous border cities in Tamaulipas and Coahuila, Mexico, may be transported to cities deeper into Mexico’s interior. Much about this transport remains undefined, though, including how migrants would be brought back to the border for their hearings.

While the Remain in Mexico rollout proceeds, the Biden administration continues to implement the Trump-era “Title 42” policy of quickly expelling migrants, purportedly to limit COVID exposure, without offering a chance to request asylum. Mexico accepts rapid expulsions of most migrants from El Salvador, Guatemala, and Honduras. Citizens of other Western Hemisphere countries may now find themselves in Mexico, too—including many from dictatorial regimes that the U.S. government regularly condemns, like Cuba, Nicaragua, and Venezuela. Unlike those from northern Central America, those in RMX will at least have court dates in the United States to begin their asylum processes.

Though the chance of gaining asylum through Remain in Mexico 1.0 was very slim—1.6 percent of closed cases resulted in any protected status inside the United States—some migrants may be viewing RMX as an incentiveto cross. As long as Title 42 remains in effect and ports of entry remain closed to the undocumented, Remain in Mexico is just about the only avenue available to seek asylum for migrants arriving at the U.S. border right now.

Senate confirms Chris Magnus as CBP Commissioner

By a 50-47 vote on December 7, the U.S. Senate confirmed Chris Magnus, the 61-year-old police chief of Tucson, Arizona, as the first commissioner of CBP since 2019. It was a near-total party-line vote, with only Sen. Susan Collins (R-Maine) voting with all Democrats to confirm Magnus. Though Magnus was nominated in April, his Senate process was delayed by Sen. Ron Wyden (D-Oregon), chairman of the Senate Finance Committee, who had held the nomination until CBP provided information about the Trump administration’s use of agency personnel to combat protesters in Portland in 2020.

Magnus is the first openly gay CBP Commissioner. He was known as a relatively progressive police chief, marching with Black Lives Matter protesters in 2014 and vocally criticizing the Trump administration’s immigration policies. He will now head a 60,000-person law enforcement organization, encompassing all of Border Patrol, port-of-entry personnel, and an air and marine division, whose unions were outspoken in their political support for Donald Trump. Even before taking office, Magnus has come up for frequent criticism in the Border Patrol union’s podcast.

CBP also usually ranks among federal agencies with the lowest morale. The agency faces frequent allegations of improper use of force, as well as a culture of everyday abuse—treatment of migrants in custody, verbal abuse, attitudes expressed in a controversial Facebook group—reflecting hostility to undocumented migrants and asylum seekers.

This, combined with many agents’ and supervisors’ affinity for Trump, may spell difficult relations between the agency’s rank and file and Magnus, who said at his October confirmation hearing that he wanted to enforce the law “humanely” and include more sensitivity in Border Patrol agents’ training. Magnus also told senators that he is “not an ideologue” and would take a pragmatic approach with the agency.

Chuck Wexler of the Police Executive Research Forum, which investigated CBP’s use of force during the Obama administration, told the New York Times that he did not expect Magnus to burst out the gate with a barrage of transparency and accountability reforms. “Police chiefs coming into an environment like this recognize that their learning curve has to go up, and that means listening a lot before you do anything.”

The Times reports that the Biden administration’s nominee to head Immigration and Customs Enforcement, Harris County, Texas Sheriff Ed Gonzalez, might come up in the Senate next week.

Caravans dwindle while Mexico allows asylum seekers to wait in other states

The Mexican daily Milenio published a helpful explainer about the migrant “caravans”—episodes of mass travel, on foot—that have departed from Mexico’s southern border-zone city of Tapachula since October 23. The vast majority of these caravans’ members are among the 123,000 migrants who have requested asylum before Mexico’s beleaguered refugee agency, COMAR, during the first 11 months of 2021.

Though some seek to reach the United States, many are pushing Mexico to loosen a guideline restricting them to the state where they first applied for asylum. Nearly 85,000 applied in Tapachula, a city of 350,000 in Chiapas, Mexico’s poorest state. Caravan participants want to exit the city, where employment and income opportunities are few. COMAR, though, is only able to process about 5,000 asylum requests per month nationwide, so migrants’ waits have become very long. (WOLA staff discuss this complex situation with Mexico-based asylum advocates in a December 7 episode of our podcast.)

Milenio identifies four main migrant movements since mid-October, all made up of people of mixed nationalities:

• The original October 23 movement of about 4,000 migrants from Tapachula, some of whose members—prevented from boarding vehicles—have walked almost all the way to Mexico City over nearly seven weeks. Past weekly updates have documented its slow progress.
• A second group that arrived in Veracruz state around November 9, possibly a 500-person offshoot of the first caravan. Authorities appear to have blocked or dispersed this group.
• A third group of about 3,000 people that left Tapachula on November 18, only to dissolve after about five days after National Migration Institute (INM) personnel agreed to provide travel documents allowing most to await the result of their asylum applications in other Mexican states.
• A fourth collection of smaller groups that Milenio calls “ant caravans,” each with several hundred people. These appear to have dissolved after coming to relocation agreements with INM, though some of their participants may have appeared in Veracruz state.

A remnant of the first group, numbering between 300 and 600 (including some who probably joined the caravan in recent days or weeks) is now in Mexico’s central state of Puebla, and may soon arrive in Mexico City. Its longest-lasting members have walked through Chiapas, Oaxaca, Veracruz, and Puebla, about 500 miles. Milenio reports that their plan is to gather in the Zócalo in central Mexico City to push for “respect for human rights, and humanitarian visas.” In mid-November the INM had reported having convinced at least 1,500 members of this “caravan” to desist in exchange for travel documents allowing them to await their asylum decisions in other southern or central Mexican states.

Reuters reported on a group walking towards Mexico City along the main highway from Puebla on December 9. It is not clear whether these migrants are part of the October 23 caravan, or a group that INM had relocated to Puebla.

These relocation arrangements are becoming more common as INM yields to migrants’ demands to leave Tapachula. In recent days the agency has been offering bus transportation from Tapachula to other states—all of them far from the U.S. border—to a number of migrants that is unknown but very likely in the thousands. Reuters mentions 45 buses leaving the city on December 4, 32 buses on December 5, and 70 more on December 6.

Enrique Vidal of the Tapachula-based Fray Matías de Córdova Human Rights Center is critical. “It is an improvised reaction,” he told the Associated Press. “They have the people completely uninformed and they think they can move them like merchandise.”

A large crowd of mostly Haitian migrants—estimates range from 3,000 to 7,000 people—has encamped outside of the Tapachula soccer stadium that COMAR had been using as a processing facility. They are demanding documents allowing them to live outside of Chiapas, along with bus transportation.

The process has been chaotic, which in turn has slowed the flow of buses from the stadium to a “trickle,” according to attorney Arturo Viscarra from CHIRLA. Meanwhile the Mexican daily El Universal published allegations that corrupt INM agents have been selling bus tickets to Haitian migrants—which are supposedly free—for US$300 apiece.

Between the restart of “Remain in Mexico” and Title 42’s persistence, on one hand, and the Tapachula buses on the other, Mexico is in a strange situation of seeking to relocate migrants into its interior from crowded situations at both its dangerous northern border and its economically depressed southern border.

Report points to devastated morale among National Guardsmen assigned to U.S.-Mexico border

A 4,300-word investigation by Army Times reporter Davis Winkie finds that the National Guard mission at the border, begun in 2018 as part of Donald Trump’s response to migrant caravans, “fell apart” over the past year due to irrelevance, poor leadership, and low morale.

National Guardsmen have been at the border almost continuously since the Bush administration, usually in support of CBP in roles that involve no contact with migrants. By the early Trump administration, only a couple of hundred guardsmen were stationed at the border, carrying out technology-intensive missions like aerial surveillance. In April 2018, Trump greatly increased the Guard presence, and during 2021 about 4,000 personnel from 20 states have remained. A February 2021 Government Accountability Office report found fault with the deployment’s cost estimates and internal monitoring.

The Biden administration has maintained the deployment but cut back its law enforcement role; most personnel now maintain vehicles and equipment, perform light construction, and sit in vehicles all day observing the border, alerting Border Patrol to any suspicious crossings they witness. This is distinct from the National Guard deployment ordered earlier this year Texas Gov. Greg Abbott, which is funded from Texas’s state treasury and—in an unusual move—empowers soldiers to arrest civilians.

The Army Times article includes a series of bombshell revelations provided by anonymous guardsmen who had been deployed at the border. While the entire article is a rewarding read, some highlights include:

The irrelevance of the mission: Guardsmen “stared into the darkness and fell asleep on the job while awaiting shipments of equipment for months, and only assisted in less than one in every five apprehensions. Legal restrictions on the use of Guardsmen left them with little more than watching as a mission.” Most troops are manning 24-hour lookout sites; “most consist of two soldiers in the front seat of a borrowed vehicle, peering through binoculars.” The 2021 units went months without night-vision goggles, reduced to peering into whatever was visible within range of their headlights. An officer who served at the border last year says, “We’re useless and CBP treats us like we’re useless. We cost the taxpayer millions of dollars in pay, benefits, per diem, hotels, [and] vehicle rentals.”

Personnel deaths: Three members of a 1,000-soldier battalion-level task force died, in motor vehicle and alcohol-related incidents, while based in McAllen, Texas in 2021. “For comparison, only three Army Guard troops died on overseas deployments in 2021, out of tens of thousands.”

Severe discipline problems among bored troops included widespread alcohol and drug use—so bad that local police brought drug dogs to sniff the south Texas hotels where Guardsmen were staying. Commanders carried out more than 1,200 legal actions “including nonjudicial punishments, property loss investigations, Army Regulation 15-6 investigations and more. That’s nearly one legal action for every three soldiers.” A staff officer said, “We are literally the biggest threat to ourselves down here.”

Vehicle accidents: “Troops at the border had more than three times as many car accidents over the past year—at least 500 incidents totaling roughly $630,000 in damages—than the 147 ‘illegal substance seizures’ they reported assisting.”

“If we want to secure the border, 100 customs officers is better than 100 National Guardsmen,” Rep. Rubén Gallego (D-Arizona), a former Marine, told Army Times.

“It feels warm and fuzzy to say that we have guys with camouflage down on the border, but it’s just politicians playing with people’s emotions. [The troops] don’t actually end up being effective, and you’re eroding our military capability for real threats. All you’re doing is, basically, taking [Guardsmen] away from their families [and] taking people from actual training. You’re screwing with readiness. You’re screwing with morale.”

Winkie’s article cites an anonymous letter a soldier slipped under doors at a brigade headquarters in September. “‘Someone please wave the white flag and send us all home,’ the letter pleaded. ‘I would like to jump off a bridge headfirst into a pile of rocks after seeing the good ol’ boy system and f—ed up leadership I have witnessed here.’”

Now that the U.S. government has entered fiscal year 2022, the 2021 hodgepodge of units from 20 states has been replaced by a 3,000-person mission coordinated out of the Kentucky Army National Guard. The officer who commanded the Guard units during the first five months of fiscal 2021, “then-Col. Martin Clay, was promoted to brigadier general in May.”

Links

• The International Organization on Migration estimates that 5,755 migrants have died along North American and Caribbean routes since 2014, with more than 1,060 perishing so far in 2021. Of this year’s victims, at least 650 people have died along the U.S.-Mexico border, usually of dehydration or exposure. That is the most IOM has counted since the organization began documenting deaths in 2014. Over this eight-year period, IOM counts 3,575 deaths along the U.S.-Mexico border, far more than the 2,580 remains the U.S. Border Patrol reports finding.
• A tractor-trailer carrying about 150 migrants, most from Guatemala, hit a barrier and flipped over on a highway outside Tuxtla Gutiérrez, the capital of Mexico’s state of Chiapas, on December 9. More than 50 people died, a number that is likely to increase.
• The mayor of Yuma, Arizona says that more than 6,000 migrants arrived at his city’s border with Mexico between December 4 and December 9, seeking to be apprehended and petition for asylum.
• In a two-part series at Border Report, Sandra Sánchez tells the story of a Honduran family that was placed into the Remain in Mexico program in July 2019.
• For about a week, Tijuana shelters have noticed an increase in arrivals of Haitian migrants.
• An internal August memo from the DHS Office of Civil Rights and Civil Liberties (CRCL) recommended against expelling or deporting Haitian migrants back to their home country given the criminal violence and political turmoil being suffered there, BuzzFeed reports. The CRCL memo was not taken into account, as about 9,600 Haitians have been expelled under Title 42, aboard 91 flights, since September 19.
• Nicaragua has abruptly dropped visa requirements for visitors from Cuba, leading Univision to predict an increased flow of Cuban migrants through Central America and Mexico toward the U.S. border.
• Mexican migration authorities have vastly stepped up their operations against bus transportation: Animal Político accessed internal documents showing “an increase in the number of operations against public transport, which went from one check in March to an average of 400 in August and September.” 12,000 migrants have been detained while aboard buses in Mexico so far this year. (In a much-cited 2019 article, CBP sources had told the Washington Post’sNick Miroff of a phenomenon of “express buses” leaving hundreds of asylum seekers at the border at a time.)
• DHS is requesting public comments on policy changes to prevent any future implementation of border policies that separate families, as happened thousands of times during the Trump administration. Los Angeles Times reporter Molly O’Toole remarked on Twitter that the request for comments is “bizarre” because it “sure as hell opens itself up rhetorically to: Just don’t?”
• Our April 16 update discussed the Biden Justice Department’s persistence in a Trump-era border wall land seizure lawsuit against the Cavazos family, which has held riverfront property in Mission, Texas for centuries. This week the family, represented by the Texas Civil Rights Project, got good news: a federal judge ordered the Biden administration to return the family’s land.