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 IN BRIEF:

• District court strikes down Biden administration asylum rule

A federal judge has vacated the Biden administration’s two-month-old rule restricting access to asylum for many migrants at the border. The rule, which puts asylum out of reach for migrants who don’t make an appointment or first seek it in another country en route, went into effect after the Title 42 policy’s termination. The ruling, in response to a lawsuit brought by several organizations, found that the so-called “transit ban” rule is contrary to existing law. Judge Jon Tigar stayed his own decision for 14 days, and the administration will appeal it.

• Mexico’s migrant apprehensions broke records in June

Mexican authorities apprehended 58,097 migrants during June 2023. This breaks Mexico’s previous migrant apprehensions record by more than 11 percent. Venezuela was the number-one nationality of migrants encountered, but several other nationalities doubled from May to June. Along with data from Honduras and Panama, Mexico’s numbers point to a sharp increase in migration following Title 42’s termination, even as authorities on the U.S. side of the border encounter fewer migrants.

• Texas updates

Fallout continues from a whistleblower’s revelation that police and National Guardsmen deployed to the border by Texas Gov. Greg Abbott (R) are being instructed to mistreat asylum-seeking migrants: telling them to swim across the river back to Mexico, denying them water amid extreme heat, and laying down concertina wire that is wounding many. Meanwhile the Department of Justice has filed suit to compel Texas to remove a “wall of buoys” in the middle of the river in Eagle Pass; Mexico has filed diplomatic protests; and Abbott’s deployed forces are arresting female migrants and employing mobile phone surveillance software.

THE FULL UPDATE:

District court strikes down Biden administration asylum rule

A federal court in California struck down the Biden administration’s two-month-old rule restricting access to asylum for many migrants. If courts take no further action to stay Oakland District Court Judge Jon Tigar’s ruling, the administration’s “Circumvention of Lawful Pathways” rule will be lifted by August 9.

The rule (a subject covered in numerous WOLA Border Updates, especially in March, April, and May) went into force on May 11, 2023, the day that the “Title 42” pandemic expulsions policy ended. It blocks access to asylum, with some exceptions, to all non-Mexican migrants who (a) come to the border between ports of entry (land border crossings), instead of making an appointment using Customs and Border Protection’s (CBP) “CBP One” smartphone app; and (b) did not try and fail to seek asylum in at least one other country along their route. People subjected to the rule are deported—and deported into Mexico if they are citizens of Cuba, Haiti, Nicaragua, or Venezuela—and banned from entry into the United States for five years.

Judge Tigar’s decision to strike down the rule resulted from a lawsuit ( East Bay Sanctuary Covenant v. Biden) brought by the American Civil Liberties Union, ACLU of Northern California, Center for Gender & Refugee Studies, and National Immigrant Justice Center, on behalf of East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center. Tigar had promised to issue a decision shortly after hearing arguments on July 19 (see WOLA’s July 21 Border Update).

In 2019, Judge Tigar had struck down a similar “transit ban” rule, when the Trump administration sought to ban asylum for migrants who failed to seek it elsewhere along the way. Though the Biden administration added more exceptions and sought to accompany its rule with alternative legal pathways, Tigar decided that the 2023 rule contravened existing law (especially Section 208 of the Immigration and Nationality Act) in similar ways.

According to the ruling:

• The Biden administration’s rule is contrary to existing law, which specifically states that the right to asylum exists without regard to how a migrant arrived on U.S. soil. The “clear intent” of the law, Tigar’s decision adds, is that migrants are only expected to seek asylum in another country when it “actually presents a safe option.” Though the law allows the government to impose additional rules on asylum, those must be “consistent” with the law.
• The rule is “arbitrary and capricious” because it relies on other legal pathways for migration to the United States, like “CBP One” appointments or humanitarian parole for four countries’ citizens, which are unavailable to many asylum seekers.
• The rule is procedurally invalid because the administration gave the public only 30 days to submit comments. This, in Judge Tigar’s view, did not comply with the Administrative Procedure Act, which lays out the rulemaking process.

The July 25 decision echoes some of the arguments made in tens of thousands of comments that individuals and organizations, from human rights defenders to members of Congress to the UN Refugee Agency, submitted during the 30-day period, which ended on March 27 (WOLA linked to 167 comments, including its own, in its March 31 Border Update).

Some of what many commenters warned about was already coming to 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 IN BRIEF:

• Whistleblower report: Texas border deployment is actively harming asylum seekers

An internal email from a Texas state policeman shed alarming light on the state-funded border security crackdown in Eagle Pass. Migrants are being injured by spools of concertina wire, and local authorities appear to be under orders to refuse humanitarian aid and make them swim back to Mexico in a notoriously dangerous segment of the Rio Grande.

• Border Patrol apprehensions declined 42 percent in June; border ports of entry processed 27 percent more migrants

In June, the first full month after the Title 42 pandemic policy ended, U.S. border authorities’ encounters with migrants dropped significantly. The number processed at ports of entry, however, increased to a record level, amid a jump in appointments granted using the “CBP One” smartphone app.

• Lawsuit challenging Biden administration asylum rule goes to court

A court in Oakland, California, heard arguments about the Biden administration’s controversial rule limiting access to asylum, which went into effect upon Title 42’s termination. The rule denies asylum to most non-Mexican migrants who fail to make appointments at ports of entry and don’t first seek protection elsewhere along the way. Litigants and migrants’ rights defenders contend that the rule violates U.S. law and endangers migrants waiting in Mexican border cities.

THE FULL UPDATE:

Whistleblower report: Texas border deployment is actively harming asylum seekers

The Houston Chronicle and Hearst Newspapers shared an internal e-mail from Texas State Trooper Nicholas Wingate, a medic assigned to Texas Governor Greg Abbott’s (R) state-funded border security crackdown in Eagle Pass, along the Rio Grande a few hours from San Antonio. It contains troubling revelations—now being confirmed by additional sources—of harm done to migrants by state personnel, apparently on the orders of superiors.

In that part of the border, Texas Department of Public Safety (DPS) police and state-funded National Guardsmen have strung miles of razor-sharp coils of concertina wire along the riverbank and shallows. As covered in WOLA’s July 14 Border Update, they are also building a 1,000-foot floating “wall” of buoys in the middle of the river in front of downtown Eagle Pass.

Among recent results of these state operations, from Wingate’s e-mail (with excerpts in quotes):

• On June 25, 120 people were waiting to turn themselves in on the riverbank, “exhausted hungry and tired” during a record heat wave. The Texas DPS shift officers in command twice gave orders “to push the people back into the water to go to Mexico” despite the drowning risk.
• On June 30, Texas National Guardsmen, acting on orders, “pressed back” a 4-year-old girl “who attempted to cross the wire.” The girl soon passed out in the 100-plus-degree heat and needed medical attention.
• That day, troopers found a man with “a significant laceration in his left leg” from the concertina wire. “We asked him what happened and he stated that he had a child who was stuck on a trap in the water. He said that there was a barrel that had casualty wire all over it and his child was stuck on it.”
• Also that day, a 15-year-old boy broke his leg after a roll of concertina wire forced him to re-enter the river in an area of dangerous currents.
• That evening, troopers came across a 19-year-old woman “who was in obvious pain stuck in the casualty wire who was doubled over.” She was pregnant and having a miscarriage.

“Due to the extreme heat, the order to not give people water needs to be immediately reversed,” Wingate wrote, adding: “I believe we have stepped over a line into the inhumane.”

The Houston Chronicle had already reported on the federal U.S. Border Patrol’s concern that the concertina wire would complicate rescues. On June 30, Fox News footage showed Border Patrol agents having to use shears to cut through the wire to reach migrants in the river.

Since 2021, Eagle Pass has been a prime crossing point for people seeking to turn themselves in to U.S. authorities and ask for asylum in the United States. It is also a treacherous section of the Rio Grande. In the roughly 75 miles of riverfront of Texas’s Maverick County—which includes Eagle Pass—the sheriff’s office has counted 103 drownings since 2022, according to the New York Times. That includes the July 1 death near Eagle Pass of a Guatemalan woman, her infant daughter, and another child whose body was never recovered.

The Texas state government issued a denial, stating that “no orders or directions have been given under Operation Lone Star that would compromise the lives of those attempting to cross the border illegally.” Texas DPS told The Hill, “There is not a directive or policy that instructs Troopers to withhold water from migrants or push them back into the river.”

Emerging evidence, however, points to the issuance of orders compelling behavior that endangered migrants. According to the New York Times, three other officers have corroborated that “there were explicit orders to deny water to migrants and to tell them to go back to Mexico. Three said they had been told by supervisors that troopers were not to inform the Border Patrol when migrants were in the water or at the Texas riverbank.”

A Texas DPS text message addressed to sergeants, obtained by the Times, read: “Can you please push out a message to your troopers. They are NOT to call BP when they see a group approaching or already on the bank.” The text, the Times added, “directed officers to tell migrants to ‘go back to Mexico’ and to cross the border at one of the international bridges.” To go “back to Mexico” would mean swimming back across a dangerous stretch of river.

A migrant interviewed by the Times showed wounds on his foot from stepping on concertina wire that Texas personnel had submerged in the river’s shallows, causing blood to gush through his tennis shoe. Another witnessed a woman caused “to hit her face on a spike, leaving a gash on her forehead” after a Texas agent roughly pulled a blanket off of a coil of wire at the riverbank, as people were climbing over it.

Further evidence indicates that officials were aware that endangerment of migrants was occurring, and worsening. Texas DPS director Steve McCraw sent an internal e-mail over the July 15-16 weekend, with photos of wounds, noting “that the razor wire had led to an increase in injuries for migrants.” In a July 17 report, USA Today found that, at an Eagle Pass migrant respite center, “the migrants who do stagger in often have slashes from the razor wire.”

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 IN BRIEF:

• Extreme heat brings even more migrant fatalities

Border Patrol found the remains of 10 migrants over the July 8-9 weekend amid a prolonged heat wave in Texas and Arizona. Preliminary data point to another 70 deceased migrants recovered along the border in June. Shifts intensified by climate change are making the border deadlier during the summer’s hottest months.

• Texas state government installs a 1,000-foot “wall of buoys”

In Eagle Pass, Texas, a site of frequent migrant drownings, Texas’s hardline state government is experimenting with a “wall” of floating buoys in the middle of the river to block would-be migrants. This and other state government measures have drawn criticism from environmental defenders, a local business, and those—including Border Patrol, in a leaked internal memo—who worry about danger to migrants and the difficulty of rescues.

• June migration declined sharply at the U.S.-Mexico border, declined somewhat in Panama, and is rising in Honduras

Preliminary data point to a 39 percent drop in Border Patrol apprehensions of migrants from May to June. This owes to a strict Biden administration rule, imposed after the Title 42 policy ended, that limits access to asylum, as well as a crackdown in Mexico. It also owes to a sharp increase in the availability of daily appointments for asylum seekers to approach land-border ports of entry. June data from Panama point to a 24 percent decrease, from May, in migration through the treacherous Darién Gap region. Data from Honduras, however, show a sharp increase in migration during the first nine days of July.

THE FULL UPDATE:

Extreme heat brings even more migrant fatalities

Border Patrol Chief Jason Owens shared in a July 10 tweet that, just during the July 8-9 weekend, his agents found the remains of 10 people who had died in the U.S.-Mexico border zone “due to the dangerous heat and conditions.” As noted in WOLA’s July 7 Border Update, a July 5 tweet from Owens had alerted about the recovery of 13 deceased migrants in the previous week.

These are the hottest months of the year in the border zone, and “heat dome” phenomena—a result of climate change-related changes to the jet stream and a very strong 2023 El Niño ocean current shift—have brought many consecutive days of triple-digit temperatures to Texas, northern Mexico, and now Arizona. In South Texas, wet bulb temperatures in the low 90s and heat indices near 120 are perilously close to levels ( 95 for wet bulb, 125 for heat index) considered fatal after several hours of exposure, as they overwhelm the human body’s ability to keep cool.

The historic heat in the borderlands is taking a heavy toll on residents with insufficient access to air conditioning and, of course, on the migrant population: both those seeking to cross into the United States undetected, and those waiting in northern Mexico for asylum appointments using the “CBP One” smartphone app.

• “Preliminary” data passed to the conservative Center Square news website from Border Patrol personnel point to agents having found the remains of 70 deceased migrants near the U.S.-Mexico border in June. Border Patrol’s Del Rio Sector, in mid-Texas, was the most lethal of the agency’s nine southern border sectors, with 22 migrant remains recovered last month. (In regions where they operate, local humanitarian organizations tend to find more remains than Border Patrol reports.)
• “This year in Brooks County,” in South Texas where many migrants perish while trying to walk around a Border Patrol checkpoint, “there has been 22 confirmed deaths, in terms of recoveries of human remains and bodies,” Eddie Canales of the South Texas Human Rights Center told Democracy Now.
• In Border Patrol’s El Paso Sector, which includes New Mexico, Sector Chief Anthony “Scott” Good tweeted on July 7 that agents have “recorded over 70 migrant deaths in the remote desert of New Mexico” since October 2022.

“Crossings have historically dipped during the peak summer months when temperatures along the border soar past 100 degrees,” the Washington Post noted on July 12. The Biden administration’s tough post-Title 42 asylum rule, however, may be causing more migrants who cannot access asylum to try to evade capture, and doing so in “more remote areas with greater risk. They may be U.S. deportees, or have criminal records, making them ineligible for CBP One.”

Dehydration and heat stroke are not the only causes of migrant death. A column at The Hill by University of California San Diego neurological surgery resident Alexander Tenorio recalls that the Trump administration’s construction of 30-foot border wall segments south of San Diego caused hospital admissions from migrants falling from the wall to multiply sevenfold since 2019. “Spinal injuries after border falls have cost an additional $26 million.”

Drownings in the Rio Grande and in irrigation canals remain too-common causes of death. On July 1, U.S. Customs and Border Protection (CBP) personnel and Texas state police retrieved from the river the bodies of a mother and infant daughter from Guatemala near Eagle Pass. It was near that city, in the Del Rio Sector, where 13 migrants drowned to death in a single September 1, 2022 tragedy (see WOLA’s September 9, 2022 Border Update); about 2 months before that, authorities recovered the bodies of 12 people from the river in a single day.

Texas state government installs a 1,000-foot “wall of buoys”

On July 10, the Rio Grande in Eagle Pass was in the news again, this time as the site of the latest attention-grabbing attempt to seal the border by Texas Gov. Greg Abbott (R), a vociferous critic of the Biden administration’s border and migration policies.

Trucks delivered, and workers began installing, a 1,000-foot “wall” of large spherical buoys, floating in the middle of the river along the actual aquatic borderline between Eagle Pass and Piedras Negras, Coahuila, Mexico. The line of buoys is anchored to the riverbed and equipped with underwater netting to prevent migrants from swimming under them.

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 IN BRIEF:

• More reports of migrants dying in near-record heat

Anecdotal information points to an increase in migrant deaths in the U.S.-Mexico border zone, amid skyrocketing early summer temperatures in the southern United States and Mexico. Border Patrol reported recovering 13 human remains in the past week. A child died of apparent heat exposure in Arizona, and an infant was among the remains of four people recovered from the Rio Grande in a 48-hour period in Texas.

• Current U.S.-bound migrant population appears reduced in northern Mexico and Panama, increased in southern Mexico and Honduras

The number of migrants apprehended by Border Patrol remains much lower than before the end of Title 42, while CBP has steadily increased the number of asylum-seeking migrants who may obtain daily appointments at ports of entry. Further south, northern Mexico border cities appear to have a somewhat smaller migrant population, but numbers may be increasing in southern Mexico. Migration through Honduras increased in June, but decreased in Panama’s Darién Gap.

• Border drug seizures are flat—except for fentanyl

So far in fiscal year 2023, U.S. border authorities have seized about one-quarter less heroin, methamphetamine, and marijuana than they did during the same period a year earlier. Cocaine seizures are up slightly, though, and fentanyl seizures are up 169 percent. Supplies of the potent opioid appear to be glutted, and the U.S. government stepped up interdiction with a “surge” operation between March and May.

THE FULL UPDATE:

More reports of migrants dying in near-record heat

Jet-stream fluctuations left much of the southern United States and northern Mexico trapped in an early summer “heat dome” for about two weeks in June. Reports are pointing to severe consequences for U.S.-bound migrants, both those who attempt to walk through deserts to avoid detection, and those waiting in northern Mexico, often in squalid conditions, for appointments to present themselves to U.S. authorities to seek asylum.

Customs and Border Protection (CBP) reported receiving a distress call on June 15 from a woman who was attempting to migrate through southern Arizona’s deserts with her two children. Somewhere outside Tubac, a town about halfway between Nogales and Tucson, her 9-year-old son began experiencing seizures. “The female migrant stated her son did not have prior existing medical issues and believed the heat contributed to his medical complications during their walk.” Despite being aerially evacuated, the boy died on June 16.

It used to be unusual to see families attempting to migrate through the desert, seeking to avoid apprehension. Further west, in Arizona’s Organ Pipe Cactus National Monument, Laurie Cantillo, a board member and volunteer for the Arizona-based organization Humane Borders, told NBC News that she came across “a mother with an infant strapped to her back, neither wearing sun protection” walking in 115-degree heat (46 degrees Celsius).

Just west of El Paso lies Sunland Park, New Mexico, a border municipality in the Chihuahuan Desert. In all of 2022, the Albuquerque Journal reported, the remains of 16 people attempting to cross the border were found in Sunland Park, a figure that combines deaths from heat exposure with deaths by falls from the border wall. In May and June 2023 alone, the number of recorded deaths in Sunland Park is 13, including 5 remains in a 4-day period during the June heat wave.

On the border’s eastern edge, in the Mexican city of Matamoros, Tamaulipas across from Brownsville, Texas, humanitarian workers worry about conditions in a makeshift tent camp. As many as 2,000 asylum seekers are waiting there in the blistering heat for a chance to seek asylum at a port of entry using the “CBP One” smartphone app. On July 5, Reuters published a detailed article and photo essay about conditions at the Matamoros camp, which now extends for a mile along the riverfront. Sister Norma Pimentel of the Texas-based Catholic Charities of the Rio Grande Valley told NBC that many migrants in the camp “are fed up waiting to book appointments.” Efforts to replace the encampment with a more adequate facility are “so disorganized right now,” Pimentel lamented.

“Last week alone,” Border Patrol’s new chief, Jason Owens, tweeted on July 5, the agency “recovered 13 dead migrants” with heat “the leading cause,” and reported 226 heat-related rescues.

Though not necessarily heat-related, Texas’s state Department of Public Safety meanwhile reported recovering the bodies of four people from the Rio Grande in the vicinity of Eagle Pass: two on July 1, one on July 2, and another on July 3. The victims included an infant found with “an unresponsive woman.” None of them possessed identifying documents, so their identities and nationalities are unknown. Two other migrants were pulled from the river alive during those days.

It is not yet clear whether border-zone deaths of migrants in 2023 are on track to exceed the record-breaking levels of 2021 and 2022. “In an emailed statement,” NBC reported, CBP “said it has recorded recent deaths but did not provide a number.” We still await CBP’s count of remains recovered in fiscal year 2022 (October 2021-September 2022), which the agency was required by law to report by December 31, 2022. The unofficial number in the below chart, “more than 890,” comes from the February 2023 text of the Biden administration’s rule limiting access to asylum for people who didn’t first seek it in other countries.

Local humanitarian organizations routinely report higher totals of deaths than CBP does in the regions they cover. For its part, the International Organization for Migration’s (IOM) Missing Migrant Project counted 666 instances of missing migrants along its “U.S.-Mexico border crossing” migration category in the 2022 calendar year, and 222 so far in 2023.

Current U.S.-bound migrant population appears reduced in northern Mexico and Panama, increased in southern Mexico and Honduras

A July 3 New York Times analysis noted that the number of migrants apprehended by authorities on the U.S. side of the border remains roughly half of what it was before May 11, when the Biden administration replaced the Title 42 pandemic expulsions policy with a new rule limiting many migrants’ access to asylum.

The U.S. Border Patrol Chief’s most recent “Week in Review” post to Twitter, covering an 8-day period ending June 29, reported an average of 3,542 migrant apprehensions per day. That was the largest average the Chief’s account had reported since May 19, but still less than half of the more than 7,000 per day reported during the first two weeks of May.

(As Border Patrol does not manage official ports of entry, the agency’s numbers do not include the 1,000-plus people per day, discussed below, who are now securing CBP One appointments at the border since Title 42 ended.)

The Times relayed U.S. border officials’ view that the lull in migration is probably temporary. “Officials believe that migrants have been in a wait-and-see mode since May 12,” as they see what happens to others who attempt to cross.