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 week:

• As expected, a Louisiana judge has kept in place the Title 42 expulsions policy, which was set to expire on May 23, probably for months or even more than a year. A different federal court’s ruling affords migrant families a hearing if they fear expulsion. The Louisiana decision likely means repeat border crossings will remain very high, asylum seekers will continue to take risky routes, and more migrants will arrive from “difficult-to-expel” countries. Migration at the border is currently exceeding 8,000 people per day, straining shelters, and DHS may ask Congress for more money to manage it.
• Data obtained by CBS News shows that more than 12,000 children whom CBP encountered as “unaccompanied” in 2021 had already been encountered, and expelled, as members of family units. This means that an alarmingly high number of families decided to “self-separate” after being expelled by Title 42, sending the children back across the border on their own.
• Nearly 20 Nicaraguan migrants have drowned in the Rio Grande this year, including 7 in the space of a week in mid-May. Migrants also drowned this week off the coast of Mexico and in a river that separates Mexico and Guatemala.
• The number of Haitian migrants removed by air to Haiti during the Biden administration has just surpassed 25,000.

Title 42 will remain in place for a while

Late in the day on May 20, Lafayette, Louisiana Federal District Court Judge Robert Summerhays issued a preliminary injunction blocking the Biden administration from lifting the “Title 42” pandemic expulsions policy. In the name of preventing the spread of COVID-19, this policy has enabled the rapid removal of migrants from the U.S.-Mexico border more than 1.9 million times since March 2020, without affording the chance to ask for asylum or other protection. The judge’s action makes it likely that this will continue, curtailing the right to seek asylum at the border for months or even years.

The Centers for Disease Control and Prevention (CDC) had determined on April 1 that Title 42 was no longer necessary, setting May 23 as its final day. Twenty-four Republican state attorneys-general filed suit to reverse this rescission, claiming that ending Title 42 would harm their states by enabling an increase in migrants. They elected to file their suit before Judge Summerhays, a Trump appointee in the federal courts’ conservative Fifth Circuit, which encompasses Texas, Louisiana, and Mississippi.

Summerhays’ ruling was unsurprising: he had already prohibited the Department of Homeland Security (DHS) from preparing to lift Title 42 while he weighed arguments. Lawyers were unable to persuade the judge to limit his decision just to the states that filed suit, which would have allowed Title 42 to end in the Democratic-run border states of California and New Mexico.

The Department of Justice will appeal Summerhays’ injunction, but the Fifth Circuit Court of Appeals is likely to uphold it. In the meantime, the Biden administration will comply with the court’s order and continue to expel migrants quickly.

If the administration follows the ruling, its path to ending Title 42 requires the CDC to go through the federal government’s “notice and comment” rule-making procedures. Aaron Reichlin-Melnick of the American Immigration Council explains:

Notice and comment rulemaking can be a lengthy process that will likely take the CDC months to carry out if it seeks to end Title 42 again. It requires the preparation of a formal “notice of proposed rulemaking,” a comment period of 30-60 days, agency review of all comments, the preparation of a final rule, review by the Office of Management and Budget, and then usually the final rule is delayed at least 30 days before going into effect. And even if the CDC were to go through this process, states in opposition to the policy change could simply sue again to block that new rule.

Though Title 42 was an emergency provision put in place rapidly, and although the March 2020 CDC order stated that it could be ended at any time, the Louisiana judge contends that the “emergency” cannot be rescinded without a deliberative process that could take, in Reichlin-Melnick’s estimation, “months, possibly years.”

By the end of May, the Biden administration will almost certainly have hit its 2 millionth expulsion of a migrant at the border under Title 42.

In an analysis published on May 23, WOLA listed three likely consequences of keeping Title 42 in place.

First, the number of migrants arriving at the U.S.-Mexico border each month is unlikely to decline. It will remain near historic highs. The period since March 2020 has seen a sharp increase in the population of migrants who wish to avoid capture, rather than turn themselves in to seek protection. Encounters with single adults—a demographic that includes many non-asylum seekers—have quintupled from pre-pandemic levels. Repeat encounters have skyrocketed: Title 42 means that migrants from Mexico, El Salvador, Guatemala, and Honduras get dropped at the Mexico border without being processed, enabling many to attempt to cross again.

Second, migrants who do seek protection will continue to be forced either to cross improperly, or to wait for many more months in dangerous Mexican border cities. Because land ports of entry remain closed to them, asylum seekers will face strong incentives to risk their lives by climbing the border wall, fording the Rio Grande, and paying organized crime to smuggle them across so that they may turn themselves in to Border Patrol. If they do not wish to do that, migrants will remain stranded in Mexican border towns, where data collected by Human Rights First show at least 10,250 reports of murder, kidnapping, rape, torture and other violent attacks on migrants since January 2021.

Third, more migrants will come from “difficult-to-expel” countries, leaving Title 42 applied to only a minority of migrants. 99 percent of migrants who get expelled come from the four countries whose citizens Mexico allows to be expelled over the land border: Mexico, El Salvador, Guatemala, and Honduras. (In early May, Mexico agreed to take a limited number of Cuban and Nicaraguan citizens as well. As discussed below, thousands of Haitian migrants also get expelled by air.) Citizens of all other countries face minuscule odds of being expelled if they seek protection in the United States: their countries are too distant, or their governments have poor relations with the United States. These “other countries” made up 46 percent of migrants encountered at the border in April 2022. As a result, the Biden administration did not apply Title 42 to 59 percent of the migrants it encountered that month. That percentage is likely to increase as Title 42 persists.

In April, a remarkable 78 percent of migrants arriving as families came from these “difficult-to-expel” countries. Migrant families who turn themselves in to U.S. authorities to seek protection, however, now have a legal lifeline. A March 2022 District of Columbia appeals court ruling, allowing families to express fear of persecution or torture, went into effect on May 23.

Under the Huisha-Huisha v. Mayorkas decision, CBP officers and Border Patrol agents must give families who show fear of expulsion either an interview with an asylum officer to evaluate the credibility of that fear, or placement in regular asylum proceedings and release into the United States. New guidance issued to CBP and Border Patrol requires officials, as the San Diego Union-Tribune explains,

to watch for “manifestations of fear” that include asylum seekers saying they are afraid of being in that country, asylum seekers saying they have already been harmed or that they will be harmed in that country, as well as asylum seekers showing signs of fear. The documents list “hysteria, trembling, unusual behavior, incoherent speech patterns, self-inflicted harm, panic attacks, or an unusual level of silence” as examples of nonverbal signs of fear.

The guidance does not require U.S. personnel to ask the families if they fear expulsion. The families must speak up themselves, or the U.S. official must detect  the above-mentioned signs of fear.

These new procedures will give families from “easy-to-expel” countries a greater chance of avoiding Title 42 expulsion. An unnamed DHS official told NBC News that this new requirement is “the first nail in the coffin of Title 42.” In April 2022, DHS used Title 42 to expel 13 percent of families it encountered; this percentage is likely to decline still further.

The Biden administration already refuses to apply Title 42 to unaccompanied children. The combination of Summerhays’ ruling and the Huisha-Huisha procedures is likely to turn Title 42 into a policy applied almost entirely to single adults.

However, Lee Gelernt, the ACLU’s lead litigator on the Huisha-Huisha case, warned that some families may still be returned to danger: “We have significant concerns that families who need protection will not be screened because they will be too scared or confused to speak up without prompting and that non-verbal ‘manifestations’ of fear are too difficult to determine,” he told the Union-Tribune.

The Louisiana ruling likely reduces momentum for Republican members of Congress, accompanied by some moderate Democrats, to pass legislation to keep Title 42 in place. A bill introduced by Sens. James Lankford (R-Oklahoma) and Kyrsten Sinema (D-Arizona) would keep Title 42 until after the government’s COVID emergency declaration is terminated, potentially suspending the right to seek asylum at the border for years. It appeared that this legislation may have had enough support to be attached to a COVID-19 relief bill, but after the Louisiana court ruling some of its Democratic supporters, like Sen. Mark Kelly (D-Arizona), appear less willing to seek to attach it to the COVID measure. Republican senators insist that they still want a vote; the U.S. Congress is in recess until the week of June 6.

Meanwhile, the pandemic measure has not prevented migration at the border from reaching record levels. Internal CBP data reported by the New York Times and Axios point to 8,000 to 8,200 border crossings happening each day right now. About 1,200 adults and 1,300 family members per day are being released into the United States.

Axios revealed DHS documents’ estimate that 40,000 to 50,000 migrants, including over 10,000 Haitians, are now in Mexico awaiting an opportunity to cross. Judge Summerhays’ ruling had cited a figure of “between 30,000 to 60,000.”

At a rate of over 8,000 people per day, the backup inside Mexico is equivalent to just 6 or 7 days of migration. Erika Pinheiro of the Tijuana-San Diego legal aid group Al Otro Lado, which accompanied the mass processing of 20,000 Ukrainian migrants in March and April, told the New Yorker that CBP can handle a flow like this in an orderly way: “They have the capacity for humanitarian processing. If they treat everyone the way they treated the Ukrainians, we’ll clear this backlog in a matter of weeks.”

Between January 2021 and April 2022, about 700,000 undocumented migrants encountered at the border, mostly asylum seekers, were admitted into the United States, according to a New York Times analysis of federal data. Articles this week in the Times and the Dallas Morning News profiled the charity-run shelter networks in U.S. border towns that are endeavoring to receive these released migrants so that CBP doesn’t release them on these towns’ streets. “Attorneys to shelter operators to aid workers are in a constant scramble as ground conditions change and policies are applied to one nationality, such as Ukrainians, but not another,” the Morning News reported.

Pressure on shelters and service providers is mounting in Mexican border towns, too, where the northward flow of migrants is compounded by a steady southward stream of deportations and Title 42 expulsions from the United States (as WOLA discussed in a May 18 report from San Diego and Tijuana). The El Paso Times, La Verdad, and Milenio all reported this week from Ciudad Juárez, where the migrant shelter network is under stress, and where a growing number of Haitian migrants has been arriving.

NBC News reported that DHS is likely to ask Congress for “emergency supplemental” funding for the 2022 budget year to keep up with the cost of processing migrants. The Department claims that it is in danger of running out of money for this purpose before the fiscal year ends on September 30:

Without tapping into key programs, DHS agencies that handle migration would need roughly $1.2 billion in additional funds to cover the cost estimated if border crossings reach 10,000 per day, the document says. The extra costs would be higher if more migrants cross: $1.6 billion for 14,000 crossings a day and $2 billion for 18,000 per day.

Title 42 has caused a very high number of family “self-separations”

At about the same time Judge Summerhays issued his ruling, CBS News reported an alarming statistic that got buried under the Title 42 news. In response to a Freedom of Information Act request, CBP informed CBS that, during fiscal year 2021, Border Patrol processed 12,212 unaccompanied children whom it had already processed and expelled, usually as members of family units.

About 33 times per day in 2021, then, an expelled family in Mexico appears to have “self-separated.” Parents made the wrenching choice to send their children back, unaccompanied, across the border, where they might be safer. The U.S. government stopped using Title 42 to expel families after a Washington, DC district court judge halted the practice in November 2020. Expulsions of families have continued at a robust rate, though, creating a perverse incentive for “self-separations.”

An unnamed U.S. official told CBS News that “The Biden administration has been ‘well-aware of this phenomenon’ of self-separations among migrant families and some officials have cited it as a reason to end Title 42.”

Migrants drowning in the Rio Grande and along maritime routes

The independent online media outlet Nicaragua Investiga reports that “At least in 2022, nearly 20 Nicaraguans have died trying to cross the Rio Grande to reach the United States, and another number have perished en route to the U.S. border.”

Among those appear to be 7 Nicaraguan citizens dead or missing after being swept away by the Rio Grande in about a week:

• Kenneth Blas Cardoza, 27, on May 19
• Irma Yaritza Huete, 25, on May 18
• Huete’s 4-year-old daughter
• Darling Francisca Rosales Ortiz, 32, on May 17
• Rosales’s son Dominic, 5
• Keythel Borges Castellón. 20, on May 14
• Catalina Luna Orozco, 40, on May 14

The non-profit group Texas Nicaraguan Community has been keeping a grim count of the drownings.

Deaths are mounting elsewhere along the migrant route to the United States.

• As many as seven Honduran migrants drowned when their 25-foot boat sank in the Gulf of Mexico off the coast of Veracruz, Mexico. Milenio notes that large numbers of migrants have been opting for a short-hop maritime route in this sector, in order to avoid three road checkpoints between Villahermosa, Tabasco and Agua Dulce, Veracruz.
• The bodies of a drowned 36-year-old Salvadoran migrant and his 7-year-old son were found on May 19 in the Suchiate River, which forms the boundary between Guatemala and Mexico.
• In Panama, “many of the migrants who enter the inhospitable Darién jungle in search of better living conditions die along the way,” reports the Venezuelan publication Tal Cual, citing Panamanian government data showing nearly 7,000 Venezuelans took this dangerous migration route in the first 4 months of 2022. The report is based on an alarming Twitter thread from Human Rights Watch researcher Juan Pappier, who just returned from a visit to the Darién region.
• Though not headed to the U.S.-Mexico border, a rapidly growing number of Haitian and Cuban migrants have been taking to the Caribbean and the Florida Straits, often in barely seaworthy craft, in attempts to reach the United States. A vessel carrying Haitian migrants capsized near Puerto Rico on May 12; about 11 drowned. The Associated Press reports that the U.S. Coast Guard has interdicted about 4,500 Haitians at sea since October, more than 3,000 of them since mid-March. A new Migration Policy Institute report on maritime migration notes that early 2,000 Cuban migrants have also been interdicted since October.

Aerial expulsions to Haiti hit 25,000

As noted above, DHS applies the Title 42 expulsions policy almost entirely to migrants from the countries whose citizens Mexico accepts across the land border. Other countries’ citizens tend not to be expelled, with one major exception: Haiti.

Migrants from the island nation, the poorest in the Western Hemisphere, are expelled often under a high-tempo aerial removal campaign that intensified in September 2021, when over 10,000 Haitian migrants arrived en masse on the banks of the Rio Grande in Del Rio, Texas. (See WOLA’s analysis published in February, when the Biden administration removed its 20,000th Haitian migrant.) Between September and April, CBP has encountered 39,585 Haitian migrants at the U.S.-Mexico border. It has used Title 42 to expel 14,559 of them, or 37 percent. No other country whose citizens are expelled by air comes close to Haiti.

Adding expelled Haitians to deported Haitians yields an even larger number of removals to a country currently experiencing a severe wave of gang violence, kidnappings, and anarchy following the July 2021 assassination of the country’s president.

This week, the Biden administration removed its 25,000th Haitian migrant by air since January 2021, according to a count kept by Tom Cartwright of Witness at the Border, who monitors removal flights and uses International Organization for Migration (IOM) data to make regular small adjustments to his estimates. By Cartwright’s count, the administration hit the 25,000 milestone on May 25.

CBP “migrant encounters” data show a sharp increase in Haitians arriving at the U.S.-Mexico border since February. With that has come a sharp increase in DHS removal flights. 19 planes took migrants back to Haiti during the 7 days between May 20 and May 26, including an unusual 4 flights over the May 21-22 weekend. “522 people were expelled by the Biden admin to Haiti yesterday and today alone,” Guerline Jozef of the Haitian Bridge Alliance told NBC News’s Jacob Soboroff on May 22.

By the morning of May 27, Cartwright’s count had risen to 25,700. Haiti’s population is estimated at 11.4 million, so 1 in every 444 people living in Haiti today was aboard a U.S. removal aircraft during the past 16 months.

Links

• A new WOLA analysis looks at migration beyond the U.S.-Mexico border, examining recent trends in human mobility and the challenges migrants, refugees, and asylum seekers are facing throughout the hemisphere.
• “ Bajo la Bota” (Under the Boot) is a new multimedia microsite put together by the Fundación para la Justicia y el Estado Democrático de Derecho (FJEDD) and five other Mexican human rights and migrant rights groups. It documents the increasing use of armed forces to counter migration in Mexico, in parts of Central America, and in the United States. “An iron-fisted wind is blowing in the region to contain the rising human river,” the site warns.
• In circumstances that remain to be clarified, a Border Patrol agent shot and killed a Mexican migrant in Douglas, Arizona after midnight on May 24. According to the Arizona Republic, the Mexican consulate received an initial report stating that the migrant was taken to a Douglas hospital after being injured climbing the border wall, then “tried to escape and entered into a confrontation with a Border Patrol agent.” The May 24 incident is under FBI investigation, and being reviewed by CBP’s Office of Professional Responsibility. This is the second agent-involved shooting near Douglas since February 19, when Agent Kendrek Bybee Staheli shot and killed Mexican migrant Carmelo Cruz-Marcos.
• CBP Commissioner Chris Magnus said that the agency is developing a new policy for vehicle pursuits. High-speed chases involving Border Patrol agents, some of them in populated areas, have generated increasing controversy. The American Civil Liberties Union of Texas and New Mexico, which has been documenting this closely, counted 22 people killed in vehicle pursuits in 2021, up from 14 in 2020 and 2 in 2019.
• The embattled DHS Inspector-General, Trump-era appointee Joseph Cuffari, sent a letter to Senate Judiciary Committee leaders seeking to defend himself from allegations, first revealed by the Project on Government Oversight (POGO), that his office (OIG) has been suppressing, delaying, and watering down information about serious patterns of sexual harassment and domestic abuse within the Department’s law enforcement agencies. Cuffari’s letter blames “senior DHS OIG officials who preceded me,” “the intransigence of some inspectors,” and OIG staff withholding information from him. “This is not the response of someone committed to meeting the statutory mandate for inspectors general,” reads a Twitter thread from POGO’s director of public policy, Liz Hempowicz.
• A resolution seeking to block the Biden administration’s new asylum rule, which will take effect on May 31, failed by a 46-48 vote on May 26. Sen. Joe Manchin (D-West Virginia) was the only Democrat to vote for it. The White House had signaled its intention to veto it. The asylum rule is facing a legal challenge submitted by the Texas state government before Amarillo federal District Judge Matthew Kacsmaryk, the same judge who ordered reinstatement of the “Remain in Mexico” policy last August. Kacsmaryk will not issue a ruling before May 31, so the new rule will go into effect. It assigns a greater role to asylum officers in adjudicating cases, and speeds the asylum process in ways that concern immigration advocates.
• “The government of Texas has been asking us to place barbed wire on the Mexican side of the border,” said the director of Mexico’s migration agency (INM), Francisco Garduño. “The policy of the Mexican government has been ‘no’ to the wall, and we do not believe in, and we do not want, a barbed-wire wall either.”
• A Catholic priest who ran the Casa del Migrante migrant shelter in the Mexican border town of Tecate, east of Tijuana, was found dead on May 17. His body showed signs of torture.
• “The Mexican government has a plan, a very good agenda for security along the Isthmus of Tehuantepec,” said U.S. Ambassador to Mexico Ken Salazar, referring to the region of southern Mexico where the country reaches its narrowest point. “There, in the Isthmus, for 300 kilometers, 180 miles, it’s easier to see what is happening in the 180 mile border and not 2,000 miles in the desert, so it is part of the migration solution. It is also part of the security solution.” He continued, “That’s where the keys are to solve the problems we have now regarding the flow of migration to the north.”
• At the Dallas Morning News, Alfredo Corchado recalls the day, 25 years ago on May 20, when 18-year-old Esequiel Hernández became the first U.S. civilian killed by U.S. soldiers on U.S. soil since the May 1970 Kent State killings. Hernández, who was carrying a .22-caliber rifle while herding goats on his property in Redford, Texas, was shot and killed by a concealed active-duty Marine assigned to the border region on a counter-drug mission.
• An agent from Border Patrol’s SWAT team, known as BORTAC, fired the shot that killed the gunman at the elementary school in Uvalde, Texas on May 24. Uvalde is about an hour’s drive from the border towns of Del Rio and Eagle Pass.

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 week:

• The overall number of migrants encountered at the border increased from March to April, but this number declined when paroled Ukrainian migrants are subtracted from the total. It declined further—by 16 percent—when repeat crossers are subtracted. The “Remain in Mexico” program, revived by court order, continues to grow, though more exceptions are being made for migrants with credible fear of being made to wait in Mexican border cities.
• It is another busy year for migration in Panama’s treacherous Darién Gap, where Doctors Without Borders has already counted 89 cases of sexual violence against migrants.
• The Title 42 pandemic authority, which has enabled the rapid expulsion of migrants nearly 2 million times and curtailed the right to seek asylum, may expire on May 23, unless a Trump-appointed judge in Louisiana decides otherwise. Legislative efforts to preserve Title 42 are on hold for now. Large numbers of migrants in Mexican border cities are awaiting a chance to ask for protection in the United States, and the main shelter in El Paso is warning of capacity issues.
• DHS witnesses in a House hearing warned that transshipment of synthetic drugs like fentanyl and methamphetamine continue to increase at the border. They noted that nearly all of these seizures occur at ports of entry, not in the areas between where Border Patrol operates, and that there is little overlap between drug and migrant smuggling.

 

Migration declined slightly from March to April

U.S. Customs and Border Protection (CBP) reported data on May 17 about the agency’s encounters with migrants at the U.S.-Mexico border during the month of April 2022. It encountered 157,555 individual migrants on 234,088 occasions, 2 percent fewer individuals than in March. The gap between “encounters” and “individuals” indicates a very large number of repeat crossings, a result of CPB’s rapid expulsions of migrants under the Title 42 pandemic authority, which eases repeat attempts.

Of those 157,555 people, 32,288 reported to the border’s land ports of entry—20,118 of them citizens of Ukraine whom CBP paroled into the United States. Since repeat encounters are rare at ports of entry, subtracting 32,288 from 157,555 leaves a total of about 125,267 individual migrants apprehended by Border Patrol between the ports of entry in April. While high, this “unique Border Patrol apprehensions” number is 16 percent fewer than it was in March, and is 6th for the last 10 months, the period during which CBP has reported unique individual apprehensions.

April brings CBP’s overall “encounters” number to 1,478,977 since fiscal year 2022 began last October. As five months remain to the fiscal year, the agency is likely to break its annual migrant encounter record.

72 percent of migrants encountered at the border so far this year are single adults. Other than the pandemic year of 2020, this is the largest proportion of single adults since 2015. April continued the trend, with 71 percent of the month’s encounters occurring with adults traveling without children.

Adults are more likely than families or children to attempt repeat crossings, so Title 42’s easing of repeat attempts has inflated this number. Should Title 42 end, DHS officials say that they are prepared once again to apply “consequences” like immigration bans and even prison time to repeat crossers. As a result, they expect the number of repeat crossings—and thus the overall “encounters” number—to decrease after Title 42 comes to an eventual end.

Title 42 may or may not end on May 23, as this update discusses below. By that date, it’s somewhat likely that the Department of Homeland Security (DHS) will have used the authority to expel its 2 millionth migrant. The expulsions total at the U.S.-Mexico border stood at 1,915,848 on April 30.

CBP used Title 42 to expel 41 percent of migrants (and 54 percent of single adult migrants) whom its personnel encountered in April. Another 7 percent were processed under normal immigration law, but then removed from the United States. Of the remainder, 110,207 were released into the United States, in many cases to pursue asylum claims, and 7,782 were handed over to Immigration and Customs Enforcement (ICE).

The 41 percent of migrants expelled under Title 42 is a somewhat smaller proportion than in earlier months, in large part because an ever larger share of migrants are coming from countries whose citizens the U.S. government cannot easily expel, like Cuba, Ukraine, Colombia, Nicaragua, or Venezuela.

In fact, Cuba and Ukraine were the number two and three countries of origin of migrants encountered at the border in April, a circumstance that is unlikely ever to repeat now that Ukrainian citizens have a more formal process to petition for refuge in the United States. The elevated number of Cuban arrivals at the border owes in large part to Nicaragua’s November decision to eliminate visa requirements for visitors from the island, making the journey much shorter.

Until 2018, 95 percent of migrants apprehended at the U.S.-Mexico border routinely came from four countries: Mexico, El Salvador, Guatemala, and Honduras. In 2019, that dropped to 91 percent. In April 2022, those four countries’ share of all migrant encounters declined to 54 percent. Still, the four made up 99 percent of all Title 42 expulsions last month. This is because Mexico accepts Title 42 expulsions over the land border of its own citizens, and of citizens from the three Central American countries (and as of early May, some citizens of Cuba and Nicaragua).

Encounters with migrants traveling as families (parents with children) increased 44 percent from March to April, though they remain significantly fewer than they were in 2019 and during the summer of 2021. A remarkable 72 percent of families encountered in April were not from Mexico, El Salvador, Guatemala, or Honduras. Largely as a result, 13 percent of families were expelled under Title 42, a smaller proportion than in recent months.

Encounters with children traveling unaccompanied dropped 14 percent from March to April. The 12,221 encounters with unaccompanied children in April were significantly fewer than a year ago, even though the Biden administration is not using Title 42 to expel non-Mexican unaccompanied children.

A monthly report from DHS informed that it enrolled 2,005 migrants in April into the “Remain in Mexico” program, revived in December under a Texas federal court order. That is 39 percent more than in March, 124 percent more than in February, and 404 percent more than in January. Of the 5,014 migrants chosen to “remain in Mexico” between December 6, 2021 and April 30, 2022, all have been single adults, 62 percent have been Nicaraguan, 15 percent Cuban, and 7 percent Colombian.

When migrants express fear of being made to remain in Mexico, the Biden administration has taken those claims more seriously than did the Trump administration. 32 percent of those enrolled in the revived program (1,605 of 5,014) have been taken out of it, mostly due to credible claims of fear of harm in Mexican border cities.

Panama’s Darién Gap headed for second-busiest year ever

Panama, meanwhile, has posted data through April 30 about migration through the treacherous, ungoverned Darién Gap jungle region near its border with Colombia. In 2021 an unprecedented 133,726 migrants—101,072 of them Haitians traveling from South America—made the difficult 60-mile journey through the Darién. During the first four months of 2022, Panama has registered 19,092 migrants emerging from the Darién—fewer than last year but still on course to be the second largest annual number ever. This year, Venezuelans are the number-one nationality migrating through the Darién.

Doctors without Borders (MSF), one of few humanitarian groups present in the Darién region, tweeted that on May 16 “the Migrant Reception Station (ERM) in San Vicente, Panama, received 746 migrants in a single day,” far more than the daily average of 300. “In a single day, MSF has treated more than 220 patients for issues such as muscle pain, diarrhea, respiratory diseases, among other ailments.” Still more alarmingly, “over the course of this year we have treated 89 patients for sexual violence.”

Migrants who pass through it routinely say that the Darién is the most frightening part of their entire journey. In an article published this week, a Venezuelan migrant passing through Honduras told Expediente Público that he saw two dead bodies while passing through these jungles. Another said that “he and other migrants had been intercepted by armed individuals, who extorted them, sexually abused the women, and kidnapped the daughters of the people traveling with him.”

 

Title 42 may or may not be in its final days

On April 1, the Centers for Disease Control and Prevention (CDC) determined that the COVID-19 pandemic’s severity no longer warranted maintaining the Title 42 expulsions authority. The CDC set this coming Monday—May 23—as its expiration date. As of May 23, the border will return to the application of normal U.S. immigration law, unless a Louisiana federal court postpones Title 42’s expiration.

“Normal immigration law” means that the right to seek asylum will be restored: migrants who express fear of return to their country will have the credibility of their fear claims evaluated and then have their petitions decided, either by an immigration judge or an asylum officer. It also means that migrants who had sought to avoid apprehension may, if caught, no longer just be quickly expelled: they will face what DHS Secretary Alejandro Mayorkas called “enforcement consequences we bring to bear on individuals who don’t qualify” for protection, like expedited removal, several-year bans on future immigration, and even time in federal prison, especially for repeat crossers. “We do intend to bring criminal prosecutions when the facts so warrant, and we will be increasing the number of criminal prosecutions to meet the challenge,” Mayorkas said during a May 17 visit to the border.

These measures will likely bring an increase in asylum-seeking migrants, and a reduction in other migrants. All, though, will need to be processed in some way—not just expelled at the borderline—which will mean more work for U.S. border personnel.

Whether Title 42 ends on May 23 is up to Louisiana District Court Judge Robert Summerhays, a Trump appointee who is considering a suit brought by several Republican state attorneys-general, including border states Texas and Arizona. Summerhays has already issued a temporary restraining order blocking the Biden administration from starting to phase out Title 42, and he is expected—probably on Friday, May 20—to issue a preliminary injunction keeping Title 42 in place.

We won’t know until Summerhays issues his decision how long Title 42 would remain in place, and under what circumstances. Suzanne Monyak at Roll Call pointed out that his order “could apply nationwide, or only to the border states that sued: Arizona and Texas,” allowing Title 42 to be lifted in California and New Mexico, whose Democratic state governors are not party to the lawsuit.

A judicially ordered suspension of Title 42 would probably reduce momentum in Congress to pass legislation to keep the pandemic order in place. Legislation introduced by Sens. James Lankford (R-Oklahoma) and Kyrsten Sinema (D-Arizona) would keep Title 42 until after the government’s COVID emergency declaration is terminated—potentially suspending the right to seek asylum at the border for years. It has solid support from Republicans and the backing of a few moderate or electorally vulnerable Democrats.

The House of Representatives is adjourning for a two-week Memorial Day recess, and the Senate will take a one-week break on May 27. This means that there is zero possibility of legislative action on Title 42 before at least the week of June 6.

Senate Democrats are weighing a bill to provide supplemental 2022 funding for border security, which Bloomberg Government called “a move that could alleviate concerns within the caucus and defuse a potentially divisive vote attached to a COVID-19 aid package” to prolong Title 42.

Mayorkas and other DHS officials continue to tout their “comprehensive strategy” to ramp up migrant processing and “consequence delivery” should Title 42 end on, or shortly after, May 23. That strategy, laid out in a 20-page late-April document, discusses increasing temporary processing capacity—like tent-based facilities near ports of entry—and personnel surges to manage a post-Title 42 increase in protection-seeking migration at the border. The plan also calls for reimbursements of private charity-run shelters in U.S. border cities, which receive protection-seeking migrants upon their release, provide food and other basic needs, and help with travel arrangements to migrants’ U.S. destinations.

A post-Title 42 increase in asylum seekers is very likely. As reports this week from the New York Times and Fronteras Desk point out, Mexican border cities currently have large populations of migrants waiting for the right to seek asylum to be restored. In the violence-plagued border cities of Reynosa and Matamoros, Mexico, the few existing migrant shelters have seen their capacities far surpassed by an unexpected arrival of thousands of migrants from Haiti, who until recently had rarely arrived at this part of the border, across from south Texas. (DHS is responding to an increase in Haitian migrants with a faster tempo of expulsion and removal flights to Port-au-Prince, which Tom Cartwright of Witness at the Border documents at his Twitter account.)

Many migrants from difficult-to-expel countries are already crossing between ports of entry to ask for protection. In El Paso, Texas at least, this is straining the longstanding network of shelters managed by Annunciation House, whose capacity of about 500 migrants is reduced on weekends when churches are in session. On Sunday May 15, CBP released 119 single adults at the bus station in downtown El Paso, the first such release since late December 2018.

Annunciation House director Rubén García held a press conference on May 18 to warn of the group’s capacity problems and the need for greater cooperation from the local government. Annunciation House received 2,700 migrants the week of May 8, and 1,730 people in just the first three days of the week of May 15. “And it’s only going to continue to increase,” García added. “I have no doubt in fact if Title 42 is lifted on May 23, you are going to see many, many individuals having to be released into the streets.”

The shelter director said he met on May 15 with officials from the Federal Emergency Management Agency (FEMA), and that 29 FEMA personnel came to Annunciation House’s main shelter on May 17. While this helps, García said, the shelters have been facing a “vast shortage” of volunteers, in large part a result of the pandemic. Another obstacle García identified, according to El Paso Matters, is “the increased vilification of migrants, especially those coming into the United States from the Southwest border. That has turned people away from lending a hand either because of their beliefs or a fear of being targeted for their involvement.”

 

House hearing on opioid smuggling

The House of Representatives’ Homeland Security Subcommittee on Border Security, Facilitation, and Operations hosted three DHS officials for a May 18 hearing on the smuggling of fentanyl and other synthetic drugs across the U.S.-Mexico border. As WOLA’s collection of border drug-seizure infographics indicate, fentanyl and methamphetamine continue to cross the border in ever greater amounts, even as seizures of plant-based drugs like heroin, cocaine, and cannabis have remained flat or declined.

“Most illicit drugs, including fentanyl, enter the United States through our Southwest Border POEs [ports of entry],” Pete Flores, the executive assistant commissioner of CBP’s Office of Field Operations, told the subcommittee. “They are brought in by privately owned vehicles, commercial vehicles, and even pedestrians.” 86 percent of fentanyl seized at the border this year has been taken at land ports of entry, while Border Patrol has seized another 6 percent at interior checkpoints, which in nearly all cases means the drugs had recently passed through a port of entry. Only 5 percent of fentanyl seizures take place in the areas between the ports where Border Patrol operates.

“Fentanyl shipments largely originate, and are likely synthesized, in Mexico and are often concealed within larger shipments of other commodities,” Flores explained, adding that CBP calculates that it seized 2.6 billion potential fentanyl doses, and 17 billion potential methamphetamine doses, in 2021.

At ports of entry (including seaports and airports), CBP currently uses 350 large-scale and 4,500 small-scale x-ray and gamma-ray scanners. Right now, CBP has the capacity to scan only 2 percent of “primary passenger vehicles” and 15 percent of “fixed occupant commercial vehicles” crossing the U.S.-Mexico border. Flores said the agency expects to increase these “non-intrusive” scans in 2023 to 40 percent of passenger vehicles and 70 percent of commercial vehicles.

DHS Intelligence official Brian Sulc and ICE Homeland Security Investigations official Steve Cagen coincided in telling the subcommittee that there is little overlap between drug trafficking and undocumented migration. “We’ve seen some instances perhaps of migrants and drugs as a mixed event, but they’re still rare,” Sulc said.

DTOs [drug trafficking organizations] and human smuggling organizations are opportunistic and transactional with their operations, and they’re strongly motivated by profits. So combined drugs and migrant smuggling events are not really a routine practice at all. The illicit actors facilitating these movements are likely to keep these entities separate to minimize the risk of losing the potential revenue from the much higher value drugs, such as fentanyl.

“We see that drugs and human smuggling are separate,” Cagen added. “They might use the same routes, but we predominantly see the drugs coming in through the ports of entry.”

 

Links

• WOLA staff were in San Diego and Tijuana during the first week of May. We held 16 meetings with advocates, shelters, officials, journalists, and experts. We talked about the 300,000+ migrants in transit each year, post-Title 42 challenges, and U.S. border law enforcement accountability issues. On May 18, we published notes about what we learned.
• A May 18 decision from Mexico’s Supreme Court, based on a legal challenge by the Institute for Women in Mexico (IMUMI) a Mexican NGO, outlawed the government immigration agency’s (INM) use of road checkpoints to detect and detain undocumented migrants, finding that the agency’s racial profiling has harmed indigenous Mexicans.
• Andrés Ramírez, director of Mexico’s refugee agency COMAR, told Milenio that assistance from UNHCR has helped his agency contract 230 staff members. COMAR received 130,637 requests for asylum in Mexico last year, and 40,954 during the first 4 months of 2022.
• Expediente Público reported from the Honduras-Nicaragua border zone, where thousands of Cuban, Haitian, African, Venezuelan and other migrants find themselves stranded, forced to pay authorities a $210 per person fee to continue northward, or spend days waiting for a permit. The report adds, “There are allegations of police officers stopping buses, pulling off White people and collecting money from Black people who remain inside.”
• Irma Yaritza Huete Iglesia, a 25-year-old mother from Nicaragua, was the latest of many migrants to drown in the Rio Grande between Piedras Negras, Mexico and Eagle Pass, Texas. Her 4-year-old daughter remains missing.
• CBP officers at El Paso’s Bridge of the Americas fired at a southbound vehicle on May 14. “While attempting to inspect a vehicle, a driver made an abrupt movement, at which point the officers perceived a threat to themselves and fired at the driver who fled from the inspection area at a high rate of speed and crossed into Mexico,” a CBP spokesperson e-mailed the El Paso Times.
• Acting Immigration and Customs Enforcement (ICE) Director Tae Johnson told House appropriators that his agency needs a larger budget for alternatives-to-detention programs, “a much more humane” and “effective and significantly less costly option” compared to funding detention beds for migrants who pose no threat to the public. This often means the use of ankle monitors and other electronic surveillance devices that have raised human rights and privacy concerns.
• Texas Gov. Greg Abbott (R) continues to send buses of asylum-seeking migrants to Washington, DC, but “as a pressure tactic, it has fizzled,” the Dallas Morning News reported. Between April 13 and May 13, 35 chartered buses carrying 922 migrants had arrived near the Capitol and Union Station. Arizona’s Republican state government has announced its intention to start sending buses to Washington as well.
• Todd Miller, author of Empire of Borders, published two analyses this week from southern Arizona. At the Nation, Miller discussed the network of surveillance technology, “an increasingly autonomous surveillance apparatus fueled by ‘public-private partnerships,’” that he calls “Biden’s Wall.” A “Reporters Notebook” piece at the Border Chronicle reflected on the recent deaths in southeast Arizona of migrants Griselda Verduzco Armenta (died painfully trying to scale the 30-foot border wall) and Carmelo Cruz-Marcos (killed by a Border Patrol agent).