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 the Department of Homeland Security announced a new initiative against cross-border fentanyl trafficking, the synthetic opioid appears now to be transiting more through Arizona than through California. Mexico’s production of the drug has become a thorny issue in the bilateral relationship.
• Asylum seekers used the CBP One smartphone app 742 times per day in February to secure appointments at ports of entry, only a fraction of demand. Issues with the app remain so widespread that humanitarian workers in Mexican border cities are spending much of their time offering “tech support.”
• A rally, with strong words from one of San Diego’s congressional representatives, rejected CBP’s plans to build taller segments of border wall through “Friendship Park,” the only federally sanctioned place where friends and relatives on both sides of the fence can meet in person.

Cross-border fentanyl trafficking shifting from California to Arizona

Department of Homeland Security (DHS) Secretary Alejandro Mayorkas visited the Mariposa port of entry in Nogales, Arizona on March 21 to commemorate the launch of “Operation Blue Lotus,” a “surge operation” targeting cross-border fentanyl smuggling, which is now increasingly happening in Arizona.

With an increase in targeted inspections and recent installation of a “multi-energy portal (non-intrusive inspection technology or NII)” scanner at the Mariposa port, Mayorkas said that the operation had led to 18 drug seizures during its first week (March 13-19), including “over 900 pounds of fentanyl, over 700 pounds of methamphetamines, and over 100 pounds of cocaine.” The “portal” is the first of two that DHS expects to install at the Nogales border crossing.

The 900 pounds of fentanyl seized in a week is equal to about 19 days’ worth of CBP’s Arizona seizures in February, when the agency confiscated 1,300 pounds of the potent opioid.

The U.S. Drug Enforcement administration considers 2 milligrams of fentanyl to be a “potentially lethal dose;” if the 900 pounds seized were one-half pure, then they would be about 100 million such doses. That traffickers ( reportedly dominated by Mexico’s Sinaloa and Jalisco cartels) are willing to risk losing so much product indicates how cheap fentanyl is to produce, and how compact and easy to smuggle it is.

Since October 2022 (the start of the government’s 2023 fiscal year, which is on pace to break past years’ records), 92 percent of U.S. border authorities’ fentanyl seizures have occurred at ports of entry, the official border crossings. The remaining 8 percent was seized by Border Patrol agents between the ports of entry.

Breaking down this seizure data by month and sector shows a significant shift, starting in the summer and fall of 2022. San Diego (blue and brown on the below chart) had long made up the overwhelming majority of border fentanyl seizures. Rather suddenly, Arizona (green, plus the small red bits) is now where more than half of the drug appears to be crossing.

Mexico’s president, Andrés Manuel López Obrador, caused a stir over the past two weeks by repeatedly claiming, without evidence, that Mexico does not produce fentanyl. His own presidential security briefings, most recently on March 7, along with military press releases, document large-scale seizures of the drug. While López Obrador sought to clarify that Mexican organized crime only has pill presses and does not manufacture the drug itself, the Wall Street Journal was able to visit a fentanyl lab in Sinaloa in 2022.

CBP One’s bumpy adoption continues

The Biden administration’s most recent court filing (dated March 16), the result of a Republican states-led lawsuit to preserve Title 42, includes statistics about asylum-seeking migrants who were able to secure appointments at border ports of entry using the “CBP One” smartphone app in February.

20,778 asylum seekers, 742 per day, were able to secure appointments under a system of Title 42 exemptions. That is up from 706 per day in January (21,881 total), when DHS switched—on January 18—from a less-formal Title 42 exemptions system to full use of the CBP One app.

As noted in several past Border Updates, migrants seeking appointments continue to experience problems with the app, including lack of internet access while fleeing, frequent crashes, limited languages (error messages are in English), and a facial capture feature that is widely reported as not responding to people with darker skin. The largest issue, though, continues to be the small number of daily appointments available, a fraction of current levels of protection-seeking migration.

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:

• U.S. data from February point to a sustained reduction in recorded levels of migration since January. This is likely a short-term result of the Biden administration’s expanded use of the Title 42 pandemic authority, which has put asylum out of reach for more nationalities of migrants. Migration from Cuba and Nicaragua plummeted 99+ percent from December to February.
• The Biden administration’s 2024 budget request would fund small increases in Border Patrol agents, CBP officers, and processing coordinators, along with scanning equipment for ports of entry, a border “contingency fund,” and more immigration judges. One budget document notes a 2022 jump in the number of what Border Patrol calls “got-aways”: migrants who evaded apprehension.
• Several hundred mostly Venezuelan migrants stranded in Ciudad Juárez, motivated by a false rumor, massed at a border bridge, leading CBP to close the route to El Paso for five hours. The episode underlined the desperation of migrants marooned in the Mexican border city and unable to secure asylum appointments via CBP’s smartphone app.

February migration remains near lowest levels of the Biden administration

The Department of Homeland Security (DHS) published data on March 15 showing that, after declining 40 percent from December to January, the number of migrants whom U.S. authorities encountered at the U.S.-Mexico border remained similar in February. (See WOLA’s February 17 Border Update for a discussion of the January decline.)

Border Patrol encountered 128,877 undocumented migrants in border zones between ports of entry in February, almost identical to the 128,913 migrants the agency encountered in January (a month that, of course, is 3 days longer). Another 26,121 undocumented migrants came to land-border ports of entry, most of them with appointments to seek asylum, adding up to a border-wide total of 154,998 migrants.

Of that total, 39,206—25 percent—were what U.S. Customs and Border Protection (CBP) calls “repeat encounters”: individuals whom the agency or its Border Patrol component had encountered at least once in the past 12 months. The agency actually encountered 94,124 unique individuals in February, a 13 percent drop from January.

The drop made February 2023 the second-lightest month of migration since the Biden administration’s first full month, February 2021. In El Paso, CBS News reported, shelters are “no longer severely overcrowded.”

The likely reason for the lower numbers continues to be the near-impossibility of gaining access to asylum for citizens of Cuba, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, and Venezuela. All of these eight countries’ citizens are subject to rapid expulsion back into Mexico—whose government accepts them—using the Title 42 pandemic authority.

That authority, which will be three years old on March 20, is set to expire on May 11. The Biden administration convinced Mexico to add Venezuelan citizens to the list of “expellable” nationalities in October 2022; Cuba, Haiti, and Nicaragua were added in early January 2023. The difficulty of accessing asylum appears to have discouraged numerous asylum seekers, regardless of the threats they may be fleeing.

CBP applied Title 42 to migrants 72,591 times in February, the most since October 2022. That means 47 percent of migrant encounters ended in expulsions, the largest percentage since March 2022. Since its inception in March 2020, CBP has used Title 42 to expel migrants from the U.S.-Mexico border 2,687,315 times.

Between the ports of entry where Border Patrol operates, migration plummeted from the four countries most recently subject to Title 42 expulsion into Mexico (Cuba, Haiti, Nicaragua, and Venezuela). Border Patrol encounters with citizens of Cuba fell 99.6 percent from December to February, from 42,616 to 176 (although maritime encounters saw a dramatic increase, as discussed below). Encounters with Nicaraguan citizens dropped 99 percent from December (35,361 to 402).

Venezuelan and Haitian citizens have arrived in increasing numbers at ports of entry, where most presumably have secured appointments to seek asylum. Since January 18, they have sought to do so using a feature in CBP’s smartphone app, CBP One.

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 Biden administration is considering a new measure to harden the border against asylum seekers: a revival of family detention facilities, which the administration shuttered last year.
• Four U.S. citizens were kidnapped, and two killed, in the Mexican border city of Matamoros. The tragedy highlighted crisis-level security conditions in Mexico’s state of Tamaulipas, a frequent site of U.S. deportations and expulsions of migrants.
• The Matamoros incident fed calls in Washington to add Mexican criminal organizations to the U.S. “terrorist list,” or even to intervene militarily. Neither proposal is likely either to be enacted, or to yield lasting results against organized crime or illicit drug supplies.

Biden Administration considering reviving family detention

The New York Times revealed on March 6 that the Biden administration is once again considering reviving a mechanism to harden the border against asylum seekers. Five “current and former administration officials with knowledge” of internal discussions said that “the Department of Homeland Security [DHS] is outlining what it would need to do to restart temporary family detention by May 11,” the day that the Title 42 pandemic expulsion policy is slated to end.

Apart from 2 pre-existing Immigration and Customs Enforcement (ICE) family detention centers, the Obama administration opened three facilities, later closing one,  to detain asylum-seekers who arrived as families (parents with children). The Trump administration maintained the two large facilities in Texas. Families spent up to 20 days at the Dilley and Karnes centers, a maximum set by a federal judge overseeing the Flores settlement agreement, which mandates that migrant children be kept in the “least restrictive setting available.”

While in detention, families—under a procedure called expedited removal—underwent preliminary “credible fear” interviews with asylum officers to determine the validity of their protection claims. In the vast majority of cases, these interviews occurred without counsel present, as detention made access to attorneys difficult.

By 2019, the Trump administration was paying nearly $320 per family bed per night to detain up to 2,500 family members at a time at Dilley and Karnes. (Because of family configurations, ICE said, the actual number was usually closer to 1,500.) This was—and remains—a tiny percentage of the total family migrant population. Those not selected for detention were generally released into the U.S. interior, usually with devices or other methods of monitoring them, with dates to appear in immigration court.

The family facilities were harmful and controversial. One, in Artesia, New Mexico, was closed in 2014 “after complaints about the conditions there,” the Times recalled. In 2018 two experts contracted by the DHS Office for Civil Rights and Civil Liberties blew the whistle on detention conditions that they described as posing “substantial harm to children.” (Drs. Scott Allen and Pamela McPherson, now represented by the Government Accountability Project, issued a March 8 statement opposing renewed family detention.)

During the 2020 campaign, Joe Biden tweeted, “Children should be released from ICE detention with their parents immediately. This is pretty simple, and I can’t believe I have to say it: Families belong together.” A February 2022 memo ordered that the Dilley and Karnes facilities be reconfigured to hold only adults.

Numbers of migrants arriving as families have averaged about 52,000 per month during Biden’s presidential tenure. As his administration prepares for a likely end of Title 42, a reversal of the President’s past positions is a distinct possibility.

Asked about it by PBS’s Christiane Amanpour, DHS Secretary Alejandro Mayorkas replied, “One thing that I promote in this department is to put all options on the table. Great, good, bad, terrible, let us discuss them, and many will be left on the cutting room floor… We haven’t made a decision yet.” White House Press Secretary Karine Jean-Pierre answered a reporter’s question: “I’m not saying it’s being considered… I’m not saying it is, and I’m not saying it is not. I’m saying that I’m not going to speak to rumors.”

“One leading option under consideration,” the Washington Post reported, would be to reopen the larger Dilley facility, though another Post source disputed that Dilley was being considered. “The facilities also would need to be set up to provide educational programs and playgrounds,” the New York Times noted.

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 Biden administration’s proposed new asylum transit ban rule has divided opinions among Democratic lawmakers and could be related to two senior White House officials’ exit.
• The rule is leading Mexico’s refugee agency, which received 13,000 asylum requests in January, to rethink a plan for express asylum denials.
• The “CBP One” smartphone app’s rollout for asylum seekers remains troubled, amid glitches and a scarcity of appointments so acute that it is causing families to separate.
• A consequence of the Biden administration’s haste to place unaccompanied migrant children with U.S.-based sponsors is a “new economy of exploitation,” a New York Times investigation revealed.
• Onerous new rules that could force migrant shelters to close are among factors making Guatemala a difficult transit country for migrants, especially those from Venezuela who report widespread extortion by corrupt police.
• Migration is increasing again in Panama’s Darién Gap. The country temporarily suspended a troubled bus service that whisks migrants from the jungle region to the Costa Rica border.

Political fallout over the Biden administration’s new asylum transit ban rule

Analyses at CNN and the Washington Post highlighted divisions within the Democratic Party over the Biden administration’s proposed ban on asylum for migrants who passed through another country en route to the U.S.-Mexico border. (The administration calls the ban, discussed in WOLA’s February 23 update, a “rebuttable presumption of ineligibility” for asylum.)

“This is a racist policy,” Rep. Jamaal Bowman (D-New York) told the Post. On the other side, “If a person thinks that the immigration activists are the only part of the Democratic base, then they’re wrong,” Rep. Henry Cuellar (D-Texas) told National Public Radio.

Two White House immigration policy advisors, Lise Clavel and Leidy Perez-Davis, are resigning, Politico reported. The article noted, “news of the impending exits comes days after the Biden administration announced its most restrictive border control measure to date.”

CNN and CBS News reported that administration officials considered an asylum transit ban in 2021, after migration levels at the border began a rapid increase. At the time, they ended up rejecting the idea because, the White House counsel argued, courts would be likely to block it.

The asylum ban rule is still officially a draft. People and organizations with views about it can submit comments—a key part of the federal government rulemaking process—until March 27. A coalition of migrants’ rights groups has published a guide and template for comments.

Transit ban’s impact on asylum in Mexico

In Mexico, the transit ban is causing the government’s refugee agency (Mexican Commission for Refugee Aid, COMAR) to rethink a pilot project that had sought to speed up asylum denials for applicants who appeared likely to use their status in Mexico to travel to the U.S. border and seek asylum there.

The Biden administration’s proposed rule would not disqualify those who had their asylum applications rejected by other countries en route. COMAR director Andrés Ramírez told CNN that he “now worries that accelerating asylum denials could actually increase Mexico’s attractiveness as a pit stop for those ultimately aiming to request asylum in the US,” using their Mexican denials.

According to the agency’s February 16 release of statistics, 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.

Afghanistan, for the first time, made COMAR’s “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).

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 Biden administration released a draft rule that, if implemented, would deny asylum to many migrants who passed through other countries on their way to the U.S.-Mexico border, and did not first seek asylum in those countries. This is part of a controversial series of restrictions and alternative pathways that the administration expects to have in place after the Title 42 pandemic authority possibly expires on May 11.
• One of those pathways includes use of the “CBP One” smartphone app to schedule asylum application appointments at land-border ports of entry. The app, functioning for over a month as a means to obtain Title 42 exemptions, continues to have problems, particularly a very small number of available appointments.
• Application of Title 42 to Cuban migrants appears to have slowed their arrival at the U.S.-Mexico border, but it also appears to have caused a jump in maritime migration from Cuba to Florida.
• The Supreme Court canceled oral arguments, scheduled for March 1, on Republican states’ effort to prevent Title 42 from terminating. The Court did not take down its order keeping the pandemic expulsion authority in place, though, so Title 42 remains active at least until May 11, 2023.

The asylum “transit ban” rule is out

On February 21 the Departments of Homeland Security and Justice took a step that the Biden administration had first previewed on January 5. The administration introduced a draft rule ( “Notice of Proposed Rulemaking”) that would deny the legal right to seek asylum to many migrants who passed through other countries on their way to the U.S.-Mexico border and did not first seek asylum in those countries.

The rule would partially shut down, to a historic and legally questionable extent, the right to seek asylum upon reaching U.S. soil, as laid out in Section 208 of the Immigration and Nationality Act.

This “transit ban” is part of an edifice of asylum limitations and alternative pathways that the Biden administration is building ahead of the Title 42 authority’s possible end on May 11, 2023, when the U.S. government’s COVID-19 public health emergency is to end. A February 17 WOLA commentary explains these new components.

• The new limitations on asylum include the transit ban, the placement of asylum seekers into expedited removal proceedings, and discussions  with Mexico’s government to take other countries’ citizens as deportees. To what extent Mexico might do that is unclear—the draft rule refers only to Mexico’s “willingness to accept the return of these nationals”—and appears to depend on the U.S. government offering other legal pathways.
• The pathways include two years of “humanitarian parole” in the United States, with work authorization, for some nationalities’ citizens who hold passports and have U.S.-based sponsors, along with use of a smartphone app, “CBP One,” to schedule appointments to request asylum at ports of entry (official border crossings).

The 153-page draft rule refers to a “rebuttable presumption of asylum ineligibility.” It has exceptions for some asylum seekers. The transit ban does not apply to:

• Migrants who make an appointment ahead of time to apply for asylum at a port of entry (official border crossing) using new features on Customs and Border Protection’s (CBP) “CBP One” smartphone app.
• Unaccompanied children.
• Migrants who can prove that they face risk of a medical emergency, are a “victim of a severe form of trafficking in persons,” or face “an imminent and extreme threat to life or safety.”
• Migrants who can demonstrate that the CBP One app’s appointment-scheduling function was “inaccessible or unusable.”
• Migrants who, in an interview, can prove not just that they might qualify for asylum, but that they meet a higher standard of fear (“reasonable fear”).
• Migrants who can prove that they tried and failed to receive asylum in Mexico and other countries through which they passed.

Despite these exceptions, this rule could potentially turn away thousands of asylum-seeking migrants during its first months of operation. At the American Immigration Council’s Immigration Impact site, Dara Lind walked through the Kafkaesque “12 Not-at-All-Easy Steps” through which asylum seekers would have to pass once the transit ban rule goes into effect.

Immigration reform and advocacy groups quickly raised objections. Thirty groups (including WOLA) added statements to a #WelcomeWithDignity campaign warning that “Biden’s Asylum Ban Will Return Refugees to Danger and Death.” The American Immigration Council called it “one of the most restrictive border control measures to date under any president.”

ACLU attorney Lee Gelernt, who has litigated several Trump and Biden administration efforts to curtail asylum, said, “We will sue if this administration goes through with a transit ban, just as we successfully sued over the Trump transit ban.” (A 2019 Trump-era ban, with even fewer exceptions and alternate pathways, was struck down in federal court in 2020.)

Congressional Democrats voiced quick opposition. Reps. Jerrold Nadler (D-New York, the ranking Democrat on the Judiciary Committee) and Pramila Jayapal (D-Washington, ranking Democrat on the Judiciary Subcommittee on Immigration) wrote, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.” Sens. Bob Menendez (D-New Jersey), Cory Booker (D-New Jersey), Ben Ray Luján (D-New Mexico), and Alex Padilla (D-California) wrote, “We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them.”

The proposed rule was published in the Federal Register on February 23. Members of the public have until March 27 to submit comments, to which the administration must respond before implementing it. The rule would go into effect the moment that the Title 42 authority expires, and last for two years, a period that could be extended.

CBP One issues persist

“When U.S. Customs and Border Protection introduced the CBP One mobile application two years ago,” the Washington Post’s Nick Miroff wrote on February 20, “it was largely geared toward commercial trucking companies trying to schedule cargo inspections.” Now, features on the app are essential to accessing the Biden administration’s humanitarian parole program for five nationalities, and to making appointments to request asylum at ports of entry, under a limited number of Title 42 exemptions.