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.

Due to staff holiday absence, WOLA will not publish Border Updates on December 23 or 30. Updates will resume on January 6.

This week:

• As the December 21 expiration date looms for Title 42, a court challenge seeks to preserve the pandemic expulsions policy and the Biden administration is considering other measures, from a “transit ban” to pressure on Mexico, to limit access to asylum. The result of the next few weeks may have long-term consequences for the right to seek asylum at the U.S.-Mexico border.
• About 1,500 mostly Nicaraguan migrants—many of them victims of a mass kidnapping in northern Mexico—crossed from Ciudad Juárez to El Paso all at once on December 11. They are part of a sudden recent rise in migration to Border Patrol’s El Paso sector—which as recently as March was fifth of nine border sectors in migrant encounters—that is straining local services.
• Arizona activists’ direct action appears to have halted the outgoing Republican governor’s effort to use thousands of shipping containers to fill a 10-mile border wall gap in an environmentally fragile national forest. The Biden administration had been slow to respond to the construction on federal land.

A pivotal moment for the future of asylum in the United States

December 21, the federal court-ordered expiration date for the “Title 42” pandemic expulsions policy, is drawing near. The coming days and weeks may set precedents with lasting consequences for the right, enshrined in U.S. law more than 40 years ago, to seek asylum at the U.S.-Mexico border.

In March 2020, at the outset of the COVID-19 pandemic, the Trump administration invoked Section 265 of Title 42, U.S. Code, a quarantine provision, to swiftly expel undocumented migrants from the U.S.-Mexico border. It made no exception for asylum seekers, and Mexico agreed to accept expulsions of its own citizens, and citizens of three Central American countries, across the land border. The Biden administration continued to implement Title 42; both administrations have used it about 2.5 million times to expel migrants.

A Washington, DC federal district judge struck down Title 42 on November 15, finding its use “arbitrary and capricious,” but acceding to an administration request for five weeks to prepare for its end. As of December 21, the pandemic policy is to expire. Most observers expect a short-term increase in migration at the border, as many migrants who had been unable to request asylum upon reaching U.S. soil would once again be able to do so.

Republican state attorneys-general are seeking to challenge the November 15 ruling and preserve Title 42. Nineteen “red states” filed an emergency motion to the Washington, DC Circuit Court of Appeals asking it to suspend the District Court’s ruling and keep Title 42 in place past December 21. The states asked the Appeals Court to decide by December 16, and the American Civil Liberties Union (ACLU), which led a coalition of groups whose suit successfully challenged Title 42, agreed.

If the Appeals Court denies their request, the states are asking it to declare an “administrative stay” keeping Title 42 in place for one more week, which would give the states time to appeal to the Supreme Court. It would then be up to the Supreme Court’s conservative majority whether to declare a stay, keeping Title 42 in place for the duration of appeals—which could last well over a year.

Amid the uncertainty, a December 14 Department of Homeland Security (DHS) document and media reports point to options that the Biden administration is weighing in the event that Title 42 expires on December 21. Internal discussions, and discussions with Mexico, are taking place as the migrant population increases.

The number of Customs and Border Protection (CBP) encounters with migrants at the U.S.-Mexico border exceeded 9,000 per day on three occasions during the first week and a half of December, a record-breaking pace, Axios reported, adding, “Officials now are preparing for the possibility of between 12,000 to 14,000 migrants attempting to cross every day.”

The December 14 DHS document warns of “a potential for a higher number of single adults and families to be provisionally released from DHS custody into communities without NGO or other sponsor support, pending the outcome of their immigration court proceedings.“ The chief of CBP’s Border Patrol component, Raúl Ortiz, echoed that warning of large-scale direct releases in a December 9 internal memo.

In order to accommodate the likely short-term migration increase, DHS is asking Congress for $3.4 billion over its 2023 budget request which, like the rest of the federal budget, still awaits legislative approval.

According to the DHS document, in a post-Title 42 climate the Department will increase use of Expedited Removal, a form of rapid deportation for those whom CBP personnel deem not to be asylum-seekers or otherwise needing protection. It will also seek to hold more single adult asylum seekers in detention, and refer for criminal prosecution “those whose conduct warrants it”—which according to DHS includes “noncitizens seeking to evade apprehension, repeat offenders, and those engaging in smuggling efforts.”

Press reports point to more severe steps that the administration is currently considering but has not yet decided to implement.

Axios reported that officials have internally circulated “a draft rule that would impose an asylum ban for roughly five months—initially.” It is not clear what legal basis such a rule might have.

NBC News reported that officials are “solidifying plans” to implement a so-called “transit ban,” refusing asylum applications from non-Mexican migrants who did not first attempt to seek asylum in other countries along their route to the United States. Unless they can prove that they require protection under the International Convention Against Torture, a higher standard than asylum, migrants “would have to show they first sought and were denied asylum in a country they passed through on their way to the U.S. border, four sources familiar with the planning say.”

Axios added that possible exceptions to the transit ban may apply to those who “are facing extreme circumstances, such as a medical emergency or other immediate, severe harm,” and perhaps for those who, under a new process, use CBP’s “CBP One” app to schedule an appointment at a port of entry (official border crossing).

The Trump administration sought to impose a similar severe limit on asylum in 2019; a federal court overturned it after the ACLU and other organizations filed suit. DHS Secretary Alejandro Mayorkas, asked by NBC News about this controversial proposal, “did not deny that a so-called transit ban was under consideration,” even as he called the U.S. asylum system “one of our crown jewels.”

NBC and the El Paso Times, covering Mayorkas’s December 13 visit to El Paso, reported that the administration is also considering a mechanism to allow migrants from Cuba, Haiti, and Nicaragua to apply online for humanitarian parole in the United States. The program would be similar to one created in October for up to 24,000 Venezuelans, approving two years’ parole with work permits for those  who hold passports and have someone to sponsor them in the United States. Many poorer and threatened Venezuelans are unable to meet those two criteria.

The administration is leaning on Mexico, meanwhile, “to ensure that the surge of migrants bused to Juárez, to the border, over the weekend doesn’t happen again,” the El Paso Times reported, referring to a group of about 1,500 migrants discussed in this update’s next section. Roberto Velasco, Mexico’s senior diplomat for North American affairs, told the Dallas Morning News that “sensitive” and “delicate” negotiations with his U.S. counterparts are “intense” and happening “round-the-clock.”