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The Biden administration toughened its restrictions on migrants’ access to asylum at the US-Mexico border.
What does that mean? We explain in a new WOLA video.
Here, by month and by country, are appointments that CBP has granted to asylum seekers, using its “CBP One” mobile phone app, to approach U.S.-Mexico land border ports of entry.
Chart – Data Table – Source
The app’s use for this purpose began in January 2023, and today it is very hard to request asylum at the border without an app-scheduled appointment.
It is especially hard since June 5, when the Biden administration imposed a rule banning asylum for most people who cross the border between ports of entry, even though the law specifies that people have the right to ask for asylum on U.S. soil regardless of how they crossed.
Though it is the only pathway for most, appointments are scarce. CBP hasn’t increased the allotment of appointments—currently about 1,450 per day—in a year. Asylum seekers now routinely spend months in Mexico seeking, then awaiting, appointments.
When coming out in support of rolling back a decades-old human right, it’s best to at least make it look like you considered the alternatives.
Some prominent centrist and center-left commentators have published pieces supporting last week’s Biden administration imposition of severe restrictions on the legal right to seek asylum at the U.S.-Mexico border. Some viewed it as an unfortunate but necessary step; some were downright celebratory.
These columnists are entitled to their views. They may be right that inaction on the border could cost Joe Biden with some swing voters. And as noted, they may be right that the asylum system’s slowness and inefficiency could be a “pull factor” for some migrants.
These opinion pieces fail, though, by refusing to recognize that another option exists: an option that isn’t “swinging the doors open” (Kristof’s phrase). If the asylum system is broken (of course it is), then the Biden administration could fix it. This would be an administrative challenge—a fair amount of hiring and training—but hardly a moon shot for the U.S. federal government.
None of these columns talks about making the U.S. asylum system viable, and faster, adjusting it to a new era of historic worldwide migration. They don’t even mention it as an option to be discarded. Their analyses treat the asylum system as a fixed and immutable variable that we can’t do anything about. (So, incidentally, does the text of the administration’s interim final rule laying out the new asylum restriction: it laments the system’s backlog but scarcely mentions ways to address it.)
The new rule focuses only on the asylum system’s initial entry point: the U.S.-Mexico border. That makes it yet another in a ten-year-long series of efforts to deter asylum seekers at the borderline itself, or just before it. Like the others, from family separation to Remain in Mexico to Title 42 to Mexican government crackdowns, it will hurt people in the short term but will fail to move the numbers in the long term.
Where change is most urgently needed is further along in the asylum process. The backlog isn’t at the border: it lies in what happens afterward.
Imagine if it took less than a year to hand down most people’s asylum decisions, with full due process and without locking them up in detention. Imagine it being rare and unusual for cases to take longer than a year, because the system had enough judges, asylum officers, processors, case managers, and access to legal representation.
Right now—a full ten years after the first wave of Central American child and family asylum seekers surprised the Obama administration—the U.S. government is very far from that. With 725 immigration judges—9 fewer than in October!—and much fewer than 1,000 asylum officers available to attend to 1.3 million asylum cases and about 2 million other immigration cases, asylum decisions commonly take many years. In 2022, TRAC Immigration estimated an average of 4.3 years.
People who may not have understood the intricacies of U.S. asylum requirements when they came here—they just learned about the backlog’s effects via social media—end up in the United States, living their lives and awaiting a decision, for a very long time.
In many cases, such a long stay could be a good outcome because of the contributions people make while here. But it is insanity to require them to hire smugglers to get through the Darien Gap then run Mexico’s predatory organized-crime gauntlet just to touch U.S. soil, suffering abuse along the way.
Along with opening up other legal pathways, then, the goal should be to slash asylum backlog wait times while respecting and expanding rights. Fewer people who are unlikely to qualify would opt for the asylum system if the normal wait was shorter.
All that stands in the way of that is the hiring and training of a few thousand judges and asylum officers. A hiring expansion along these lines ($110m for new immigration judges, 4,338 new asylum officers) was part of the “border deal” legislation that failed in the Senate earlier this year.
Organizations and experts have recommended variations of this solution a ridiculous number of times. They include WOLA, Human Rights First, the Migration Policy Institute, the American Immigration Council, the National Immigration Forum, and the Bipartisan Policy Center, among many others.
What the Biden administration did last week is not that solution. Far from it. They decided to shut things down on the front end, rather than move to reduce the backlog.
Instead of shoring up and rebuilding the system to match an era of historic protection-seeking migration, they have made the system itself harder to access, in a way that is likely to endanger people and is almost certainly illegal.
We need an explanation for why the administration chose not to pursue the “reduce the backlog” option (and why that hasn’t been an important part of DHS budget requests since 2021). Defenders of last week’s “asylum shutdown” should at least add a sentence somewhere saying, ”We considered this but decided against it because X.”
The opinion columnists defending the “shutdown” fail even to mention action to reduce the asylum backlog. None even glance at building up asylum processing and adjudication capacity to get those ridiculous wait times down.
They don’t even raise it in order to shoot it down. They don’t say “this is impractical,” “this costs too much,” or “this might be a good way forward, but it’s gradual and can’t move the needle between now and November.” Instead of engaging this viable alternative, they blame “the left” for constraining the President from cracking down on asylum seekers.
Others have pointed out factual inaccuracies in these widely read pieces. But the most unsatisfying part of what they wrote is the failure even to acknowledge the “reduce the backlog” option, even just to dismiss it.
The United States is watering down a human right granted in past generations. This shouldn’t be done lightly, by blithely ignoring widely proposed, doable alternatives.
See also:
Catching up on what was said at a House Homeland hearing last week about the CBP One app, which Customs and Border Protection (CBP) is using to allow 1,450 asylum seekers per day inside Mexico use to make appointments at U.S. land border ports of entry.
An official from CBP’s Office of Field Operations told the Committee that:
There is clearly a need for more appointments, as the number of asylum seekers crossing illegally to turn themselves in to Border Patrol is still a multiple of those who manage to get appointments at ports of entry using the app. And in some parts of the border, investigators from the University of Texas Strauss Center have documented, the wait is now as much as six months.
See also:
The latest quarterly “Asylum Processing at the U.S.-Mexico Border” report is out, from Stephanie Leutert and Caitlyn Yates at the University of Texas Strauss Center. It is the resource to find out about U.S. asylum availability for migrants at the U.S.-Mexico border’s ports of entry, the length of waitlists, shelters, and security threats.
As it has done since June, after TItle 42 ended, U.S. Customs and Border Protection (CBP) offers 1,450 daily appointments at the ports of entry for migrants who wish to turn themselves in to U.S. authorities. The process involves making an appointment using the CBP One smartphone app.
Three points, just from this map:
See also:
Republican senators refused to consider a big Ukraine-Israel-border funding bill unless it included language changing U.S. law to make it harder for migrants to access asylum at the U.S.-Mexico border. A group of senators negotiated for two and a half months, coming up with a set of measures three days ago that outraged both migrants’ rights defenders who feared people would be harmed, and far-right Republicans who wanted it to go further.
The bill with the compromise language just failed on the Senate floor, by a vote of 49-50. (It was a procedural vote that needed 60 votes to allow debate to begin.)
Republicans demanded that the border-migration language be included, but in the end only four voted for it (Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, and the Republicans’ chief negotiator, James Lankford of Oklahoma). Even Minority Leader Mitch McConnell (R-Kentucky), who had vocally backed Lankford’s negotiating effort, voted “no.”
Five Democrats voted “no.” (Majority Leader Chuck Schumer (D-New York) had to change his vote to “no” for procedural reasons allowing a reconsideration of the bill.) They were Ed Markey and Elizabeth Warren of Massachusetts, Bob Menendez of New Jersey, Alex Padilla of California, and Bernie Sanders (I) of Vermont, who opposed the unconditional Israel aid in the bill.
I hope that the senators move soon to approve aid to Ukraine, this time without weakening the right to asylum.
See also:
The Senate’s leadership has just dropped the text of a $118 billion supplemental appropriation, complying with a Biden administration request, which would provide additional aid to Ukraine and Israel, among other priorities including $20 billion for border and migration needs.
Republican senators’ price for allowing this bill to go forward in the Senate—where Democrats have a majority but most legislation requires 60 votes to end debate and proceed to a vote—was new restrictions on migration at the U.S.-Mexico border.
This 370-page legislative text has been out for less than 2 hours as I write this, so my reading this Sunday evening has not been thorough. But it appears to include a lot of the controversial limits on access to asylum that had already been reported in media. (I summarized those last week in a Q&A document and in our weekly Border Update.)
Provisions include:
Plus, the big one:
What do I make of this?
Either way, though, this legislation is probably not going to pass. Though I’m complaining here about some of these provisions’ cruelty, I don’t see enough red meat here to satisfy far-right and rabidly pro-Trump Republicans, especially in the GOP-majority House of Representatives. Even those who were willing to live without a full return to Trump’s policies were demanding a lower threshold number for expulsions, and curbs on the presidential humanitarian parole authority. Since they didn’t get those, they may obstruct the bill.
So the negotiators of this text added language that may endanger people. They took great pains, though, to minimize the harm it might do to asylum seekers. It is good that they tried to do so—but it means that it will be rough going in the MAGA-heavy, election-year House of Representatives.
See also:
Republican legislators have dug in and have given the Biden administration a list of demands. Aid for Ukraine and other items in the White House’s supplemental budget request will not get their approval, they say, unless the law is changed in ways that all but eliminate the right to seek asylum at the U.S.-Mexico border.
Here, at WOLA’s site, is an analysis of this proposal and the unspeakable harm that it would do. We urge the administration and congressional Democrats to stand strong and reject it.
From the conclusion:
If the Senate Republicans’ November 6 proposal were to become law, it would deny asylum to almost all protection-seeking migrants, unless:
- That migrant sought asylum and received rejections in every country through which they passed en route to the United States.
- That migrant presented at a land-border port of entry (official border crossing), even though CBP strictly limits asylum seekers’ access to these facilities.
- The U.S. government could not send that migrant to a third country to seek asylum there.
- In an initial “credible fear” interview within days of apprehension, that migrant met a higher screening standard.
If an asylum seeker clears those hurdles, the Republican proposal would require them to await their court hearings in ICE detention—even if they are a parent with children—or while “remaining in Mexico.”
This proposal is extraordinarily radical. Congressional Republicans’ demands to attach it to 2024 spending put the Biden administration in a tough position. It is a terrible choice to have to secure funding for Ukraine and other priorities by ending the United States’ historic role as a country of refuge, breaking international commitments dating back to the years after World War II.
Here’s an 1,100-word statement recalling and highlighting some of the basic principles underlying our border and migration work. Backed up with lots of numbers and data, of course.
The main points:
Read it here. It comes with an embedded video:
In a conversation with reporters whose transcript has not yet been posted online, Blas Nuñez-Neto, the Department of Homeland Security’s assistant secretary for border and immigration policy, dropped an important and rarely publicized statistic.
Since the Title 42 pandemic expulsions policy ended in May, Mexico has accepted the U.S. deportation into its territory of 17,000 citizens of Cuba, Haiti, Nicaragua, and Venezuela. These are people denied access to asylum under the Biden administration’s “transit ban” rule.
17,000 over nearly 5 months is far fewer than the rate of Title 42 expulsions during the pandemic, when Mexico agreed to accept nearly a million land-border expulsions of citizens of Guatemala, Honduras, El Salvador, Venezuela, Haiti, Cuba, and Nicaragua. Today, Mexico just accepts citizens of the latter four countries. But 17,000 is still a lot of people, some with protection needs denied because, under the “transit ban” rule, they crossed the border improperly.
The last time we saw this number reported was July 27, when Nuñez-Neto mentioned 4,000 deportations of those countries’ citizens into Mexico. So there have been another 13,000 in the succeeding 10 weeks, or nearly 200 deportations into Mexico each day.
Why isn’t this statistic shared more often, for instance in CBP’s monthly data updates? My guess is that Mexico doesn’t like to see it publicized, and the U.S. government respects those sensibilities. (DHS would probably be happy to share news about its deportations into Mexico, out of a belief that it might discourage some migrants.)
Using data released today from the Mexican government’s Refugee Aid Commission (COMAR), here is the breakdown of asylum requests before Mexico’s system during what is certain to be a record-breaking year. Asylum requests in Mexico are on track to exceed 150,000 in 2023.
Last month, Mexico received 11,984 asylum requests, the second-lowest monthly total all year. 33 percent came from citizens of Haiti, plus another 6 percent from Brazil and Chile who are almost entirely the children born in those countries to Haitian migrants there. Honduras followed with 27 percent of September’s total, then Cuba (11 percent).
The director of the Mexican government’s Refugee Aid Commission (COMAR) just shared on ex-Twitter that 112,960 people sought asylum in Mexico’s protection system during the first 9 months of 2023.
The tweet reads, “At the end of September, COMAR had registered 112,960 applicants for refugee status in Mexico. This figure exceeds by 26.39% the historical mark for the same period established in 2021. With this trend, the number of applicants will exceed 150,000 by the end of the year.”
Here’s how Mexico’s asylum applications during the first nine months of 2023 compare with the first nine months of the previous five years. It’s not even close.
The Mexican government’s refugee agency, COMAR, just posted data through August about the number of migrants from other countries who have applied for asylum in Mexico. Eight months into the year, COMAR is nearly at 100,000 applications, on pace to reach, or be just below, 150,000 by the end of the year. Mexico appears certain to break 2021’s record of 129,768 asylum applications.
Most applicants are from Haiti, Honduras, and Cuba. As Gretchen Kuhner of Mexico’s non-governmental Institute for Women in Migration (IMUMI) pointed out in last week’s WOLA Podcast, a lot of migrants stranded in Mexico are being channeled into the asylum system by a lack of other options for having a legal status in the country.
Here’s another foray into brief video, as I continue practicing use of some very complicated software.
This one is about the border with Arizona. During a very hot summer, the busiest part of the U.S.-Mexico border has made only 100 appointments per day available to asylum seekers.
Instead of reporting to a point of entry, thousands are crossing in dangerous desert during record heat. The number of CBP One appointments needs to increase in Nogales.
What a week last week was. I was just back from Honduras, I had an all-day staff planning retreat Wednesday, and I drove from Washington to Massachusetts and back on Thursday and Friday, as my daughter finished her first year of college.
And, oh yes, Title 42 ended on May 11th.
Things were so busy that, while I managed to write this commentary for WOLA’s site as fast as I could type it, I never actually posted a link to it here, at my personal site.
A week later, this piece has almost exactly 40,000 “unique pageviews” and about twice that many “pageviews,” according to WOLA’s Google Analytics account. That definitely breaks my career record, at least for writings where I’ve seen the stats.
Here’s the summary. The entire analysis, with lots of graphics, is here.
by Adam Isacson
Summary
May 11 is the final day for the Trump and Biden administrations’ “Title 42” policy, which undid the basic right to seek asylum at the U.S.-Mexico border for 38 months.
Now, 2.8 million migrant expulsions later, the U.S. government is reverting to immigration law as it existed before the world went into lockdown. But as it does so, the Biden administration is adding a new limitation on asylum that, with Mexico’s cooperation, promises to continue the pandemic-era practice of sending asylum seekers away from the United States, placing many in danger.
Media coverage is anticipating a wave of migration at the border, with headlines proclaiming that officials are “bracing for an influx.” Legislators are seeking new ways to block asylum seekers, citing “chaos.” Such concerns are misplaced.
Migration will increase, just as it did before each of Title 42’s earlier, abortive expiration dates. But the post-May 11 increase is likely to be neither giant nor long-lasting. After all, Title 42 hardly deterred migration in the first place: it’s at or near record levels already, right now. And the Biden administration is working, with the Mexican government’s collaboration, to keep asylum out of reach to an extent that may resemble what we’ve already seen over the past 38 months.
Instead of a “migrant wave,” we should be concerned about:
The situation at the border after May 11 may, for a time, appear disorderly. But it already has been, and it was before the pandemic began. If anything, Title 42’s lifting will make plain the need to reform our immigration system and align it with reality. And it will highlight the U.S. political system’s frustrating paralysis in the face of that challenge.
The facts on the ground bear this out. Here they are, in ten points.
From a Stephania Taladrid account of a Venezuelan family’s journey posted to the New Yorker on Thursday. This obviously happened before October, when Title 42 was expanded to allow Venezuelans to be expelled into Mexico, also.
While Yenis readied herself to cross, Alexis learned that the woman in the other group was Salvadoran; she was in the company of her four children. Each of them got in line to form a human chain across the Rio Grande.
Once in the water, Yenis turned her back on the current to minimize its impact on her belly. There was an islet mid-river, where she paused to regain her breath, and everyone else huddled around her. It was there that the Salvadoran woman confided that she needed a favor. She had heard that Salvadoran adults, unlike Venezuelans, were not being let into the U.S. Like Alexis and Yenis, she and her children had been through too much to risk deportation, so she needed her son and daughters to make the final leg of the trip on their own. The couple exchanged glances, unable to utter a single word—they felt enough responsibility already with Diana and their unborn child. But, before they could say no, the woman began to wade in the opposite direction. “Me los cuidan, por favor,” she said—“Please, take care of them.”
Mexico’s refugee agency (COMAR) received nearly 13,000 requests for asylum in January, a pace that, if sustained for the entire year, would bring a record 154,000 asylum applications in Mexico’s system in 2023.
The number-one nationality of asylum applicants in January was Haiti, the nation that was also number one in 2021. Honduras was COMAR’s number-one asylum-seeking nationality in 2022 and prior years.
Here’s the table with this chart’s underlying data. Note that Afghanistan, for the first time, made the “top ten” in January with 430 asylum requests. Afghanistan was the number-nine nationality of migrants passing through Panama’s Darién Gap region in January (291 migrants reported by Panamanian authorities).
We’re hearing word from Los Angeles Times and Reuters reporters that the Biden administration plans to announce today its new rule curtailing asylum for migrants who passed through third countries on their way to the U.S.-Mexico border. (That is, anyone who is not Mexican.)
This could not only trigger a humanitarian crisis, it is almost certainly illegal and would depend on Mexico’s government taking back thousands—perhaps tens of thousands—of vulnerable people.
WOLA explained this in a report, written principally by me, published last Friday.
Title 42 could finally end, along with the U.S. government’s COVID-19 public health emergency, on May 11. This new commentary lays out what may happen next.
According to what’s taking shape, migrants seeking protection in the United States may still face a hard time. The Biden administration may reject asylum seekers using a “transit ban” and expedited removal procedures, if Mexico takes deportees. The blow would be softened by two programs, humanitarian parole and use of the “CBP One” app, but both are deeply flawed right now and need a lot of fixes.
Read the whole thing here. También está disponible en español.
It’s so perplexing that people are convinced that Title 42 slowed migration, and that its lifting will be a major change.
Here’s what happened to single-adult migrant encounters at the US-Mexico border after Title 42 went into effect. Not a deterrent, to say the least.
Title 42 did not similarly increase child and family migration over what came before. But it didn’t reduce it, either.
The 4 countries whose citizens could be expelled across the land border into Mexico? Title 42 slowed growth in their migration, though it remained high. But citizens of all other countries surpassed them since last summer.
Title 42 did NOT reduce US-bound migration of non-Mexicans through Mexico, which has hit all-time record levels.
Northbound migration through Panama’s treacherous Darién Gap was rare before Title 42, which did nothing to deter it.
By increasing incentives not to turn themselves in to US authorities, Title 42 probably contributed to today’s horrific amount of migrant deaths on US soil along the border.
Title 42 had no impact on drugs crossing the border. Fentanyl, for instance, is almost entirely seized at ports of entry (blue) and checkpoints (brown), it appears in most cases by US citizens.
If Title 42 ends, a short-term increase is likely. Asylum seekers from 5 countries subject to land-border expulsions into Mexico will finally have a chance to seek protection, after being bottled up for 33 months.
But don’t believe for a moment that Title 42 ever reduced migration.
(P.S.: These and other charts are at WOLA’s Border Oversight page.)
This (likely with a bit more editing/polish) will be in tomorrow’s WOLA Border Update, but it’s also useful as a standalone post:
13,217 migrants applied for asylum in Mexico’s system in November 2022, the most in a month since November 2021, according to the Mexican government’s Refugee Aid Commission (COMAR). November’s asylum requests increased 15 percent over October, and 47 percent over September.
From October to November, COMAR received the largest increase in applications from citizens of Venezuela—27 percent—though the number of Venezuelan applicants was in second place behind that of citizens of Honduras. Venezuela’s applications almost certainly increased because, after the U.S. and Mexican governments began applying Title 42 and expelling Venezuelans into Mexico on October 12, Venezuelan citizens could no longer seek protection in the United States.
All nationalities measured increases in asylum applications from October to November:
Despite what you hear from some U.S. politicians and media outlets, the Americas’ ongoing migration event is not just a US-Mexico border phenomenon. People are fleeing everywhere. Colombia and others are assimilating millions of Venezuelans. Costa Rica is doing the same with Nicaraguans. And here’s Mexico.
Of 2022’s first 10 months, October was second only to March in the number of migrants who applied for asylum in Mexico. The Mexican government’s Refugee Aid Commission (COMAR) received 11,391 requests for protection during October.
The most came from Honduras, Mexico’s number-one asylum-seeking country of citizenship so far in 2022 (3,077 in October), followed by Haiti (third overall in 2022, 1,865 asylum seekers in October), Cuba (second in 2022, 1,674 in October), and Venezuela (fourth in 2022, 1,549 in October). The largest percentage increases in asylum seekers’ countries of citizenship from September to October were those from Venezuela (18%), Guatemala (16.3%), Haiti (16.0%), and Colombia (15%).
It is perhaps unsurprising that Venezuela saw the largest monthly percentage growth in asylum seekers. U.S. border authorities expelled about 6,000 Venezuelan migrants back into Mexico, without affording them a chance to ask for U.S. asylum, under the Title 42 expansion arrangement that the U.S. and Mexico announced on October 12. That means an increased population of Venezuelan citizens stranded in Mexico, and thus more asylum applicants.
COMAR reports approving 93 percent of Venezuelan citizens’ asylum applications this year. That exceeds the approval rate of all other reported nationalities, including Honduras (90%), El Salvador (89%), Cuba (50%), and Haiti (20%).
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