Adam Isacson

Still trying to understand Latin America, my own country, and why so few consequences are intended. These views are not necessarily my employer’s.

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Migration

Weekly U.S.-Mexico Border Update: January 27, 2023

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:

  • Using a now-familiar tactic, 20 Republican state governments filed suit in a Texas federal court to block the Biden administration’s use of humanitarian parole to admit up to 30,000 Cuban, Haitian, Nicaraguan, and Venezuelan migrants per month. This policy, combined with an expansion of Title 42 expulsions into Mexico, has dramatically reduced the number of migrants at the border in January, while contributing to greater hardship for asylum seekers blocked in Mexico.
  • CBP released data about migration at the U.S.-Mexico border in December, a record month for migrant encounters. Over two-thirds of those encounters were with migrants from countries other than Mexico, El Salvador, Guatemala, or Honduras. Because those other countries’ citizens were harder to expel using Title 42 (until this month), a record-low 20 percent of migrants were expelled from the border in December. CBP continues gradual increases in the number of asylum seekers permitted to present themselves at ports of entry under a system of Title 42 exemptions.
  • House Republicans have had to abandon plans to fast-track a bill that would block access to asylum at the border unless virtually impossible border security standards are met. Republican immigration-policy moderates expressed discomfort with the hardline bill. As it lacks the votes for quick floor passage, the “Border Safety and Security Act of 2023” must now pass through committee consideration, like most bills.

GOP-led states sue to stop Biden administration’s “Humanitarian Parole” program

In a scenario that has become common, 20 Republican state governments filed a lawsuit in Texas federal court seeking to block a Biden administration immigration policy. This time, the legal action targets the “humanitarian parole” program that the administration announced on January 5 (see WOLA’s January 6 Border Update).

Since that date, the Department of Homeland Security (DHS) has managed a process allowing up to 30,000 citizens of Cuba, Haiti, Nicaragua, and Venezuela per month to apply remotely—without coming to the U.S. border—for a status allowing them to remain in the United States, with work authorization, for up to two years.

To qualify for parole, migrants must have a sponsor in the United States and possess a passport, two requirements that exclude many would-be applicants for asylum in the United States. (In Haiti, passport requests have more than tripled, to 4,200 per day, overwhelming the government’s passport authority. Reports point to long lines forming at passport offices in Cuba.) As of January 25, about 1,700 migrants from Cuba, Nicaragua, and Haiti had entered the United States legally under the program, administration officials told reporters.

The Biden administration had established a similar sponsor-based parole program in April 2022 for Ukrainian migrants fleeing Russia’s invasion. The states’ lawsuit does not target that similar program.

Under the new parole program, citizens of these countries who fail to apply and instead show up at the U.S. border are now quickly expelled back into Mexico regardless of their asylum needs, with the Mexican government’s agreement, under the nearly three-year-old “Title 42” pandemic authority.

The near impossibility of seeking asylum at the border has caused migration from Cuba, Haiti, Nicaragua, and Venezuela to plummet by 97 percent between December and January, a month of record-high migration levels (see this update’s next section). “Encounters with individuals from these countries dropped from a 7-day average of 3,367 per day on December 11, to a seven-day average of just 115 on January 24,” reads a January 25 DHS release. January is now “on track to see the lowest levels of monthly border encounters since February 2021.” A DHS official told CNN that the overall number of migrants, from all countries, is down “by more than half in January compared to last month.”

During the first three weeks of January, over 14,000 migrants had passed through Panama’s Darién Gap jungles, Panamanian authorities told EFE. That is on track to match or exceed Darién Gap migration in November (16,632) and December (20,297), but to end up well below the nearly 60,000 migrants who passed through this treacherous region in October. January’s Darién Gap migrants come mostly from Haiti (6,459), Ecuador (3,031), and Brazil (562).

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CBP Migrant Encounters at the U.S.-Mexico Border, by Country of Origin, October-December

In December, Cuba nearly surpassed Mexico as the number-one country of origin of migrants encountered at the US-Mexico border.

The largest increases in encountered migrants from October-December:

  • Ecuador 130%
  • China 120%
  • Russia (now 9th) 104%
  • “Other” 102%
  • Nicaragua 69%

The largest decreases:

  • Venezuela -63%
  • Mexico -27%
  • Haiti -24%

Here is the underlying data table going back to October 2019, using CBP’s dataset.

Weekly U.S.-Mexico Border Update: January 20, 2023

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:

  • Arrivals of migrants in El Paso, the busiest part of the border near the end of 2022, have declined sharply. A key reason is the impossibility of seeking asylum for people of additional nationalities amid the Biden administration’s recent expansion of the Title 42 pandemic expulsions policy.
  • As Mexican border cities absorb more expelled migrants, they are receiving more new arrivals, who are apparently not deterred by the Title 42 expansion.
  • CBP’s new app-based process allowing especially vulnerable asylum seekers to access Title 42 exemptions was quickly overwhelmed by demand.
  • New York Mayor Eric Adams, whose city is receiving over 3,000 weekly arrivals of asylum seekers, traveled to El Paso. He called on the federal government to provide more support, and criticized governors who have been sending migrants to his city without coordination.
  • CBP rolled out a new vehicle pursuit policy that intends to clarify when Border Patrol agents may engage in high-speed chases, which have led to an increasing number of fatalities on public roads in the border region.

Migration declines in El Paso

Across the U.S.-Mexico border, U.S. border agents are apprehending about 4,000 migrants per day in mid-January, an unnamed Department of Homeland Security (DHS) official told CBS News. That is down from an average of 7,000 per day in November.

In mid-December, as WOLA’s Border Updates discussed at the time, El Paso, Texas was experiencing a sharp increase in migrant arrivals, reaching a daily average of 2,254 in the middle of December, according to data shared on a city “dashboard” page. Of that number, Customs and Border Protection (CBP) was releasing an average of 1,478 migrants per day—virtually all of them with asylum claims—into El Paso shelters or, when those filled, onto the city’s streets.

Since then, migration has rapidly plummeted in El Paso. The daily average of migrant arrivals for the past week has fallen more than 60 percent from its mid-December peak, to 850. The daily average of migrant releases has dropped 89 percent, to 166.

El Paso Mayor Oscar Leeser told Border Report that CBP has not released migrants onto the city’s streets because of exhausted shelter capacity “for weeks now.” El Paso’s convention center is no longer being used as a shelter, and the area around its bus station, where hundreds of homeless migrants were gathered in December, is now empty, the New York Times reported. The city’s government will allow a 30-day disaster declaration, issued on December 23, to lapse.

A key reason for the drop in migration to El Paso is a January 5 policy change that now makes asylum all but impossible to obtain for migrants from Cuba, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, and Venezuela. That is the list of countries whose citizens Mexico has agreed to accept as land-border expulsions under the Title 42 public health authority, which the Supreme Court prolonged on December 27.

CBP does not afford migrants subject to these expulsions the right to ask for protection in the United States, normally guaranteed under Section 208 of the Immigration and Nationality Act. With asylum impossible to obtain (with a few exceptions for the most vulnerable, discussed below), the number of asylum seekers from those countries has plummeted, at least in El Paso, where the local government reports numbers almost in real time.

With the Mexican government’s assent, the Biden administration expanded the list of countries subject to Title 42 land-border expulsion in October to include Venezuela, and in early January to include Cuba, Haiti, and Nicaragua. For all four countries, the administration paired this with a new “humanitarian parole” program allowing a combined total of up to 30,000 citizens pero month to apply online for a two-year documented status in the United States. (Applicants must hold passports and have sponsors in the United States—likely barriers to many threatened migrants—and must pass background checks.)

The first 10 migrants to be granted parole under this new system arrived by air in the United States on January 10, CBS News reported, citing “unpublished government data.” More than 600 other migrants from these four countries had already been approved for parole as of January 13. U.S. Citizenship and Immigration Services (USCIS) had received “thousands” more applications.

At the Washington Examiner, analysts at the conservative Texas Public Policy Foundation viewed the Biden administration’s Title 42 expansion as a likely cause for El Paso’s drop in migrant arrivals, but gave more credit to Texas Gov. Greg Abbott’s (R) mid-December deployment of 700 National Guardsmen to the borderline. Troops set up armored vehicles and concertina wire along the Rio Grande between El Paso and Ciudad Juárez, blocking or discouraging would-be asylum seekers.

One Texas Public Policy Foundation analyst is Rodney Scott, Border Patrol’s chief during the Trump administration and the first months of the Biden administration. Scott shared with the Examiner his view that increased fighting between organized crime groups in Ciudad Juárez, across the border from El Paso, is the main factor: “My sources within [the Department of Homeland Security] believe that the primary reason that illegal cross-border traffic has slowed in El Paso is because of the cartel wars that have ramped up recently.” (Ciudad Juárez saw a violent beginning to the new year: a prison break that freed 30 inmates, including a leader of the Sinaloa Cartel-tied “Mexicles” gang, and a related shootout that killed 17 people.)

Large numbers of migrants continue arriving in Mexican border cities

Whatever the reason for the drop in migration to El Paso, the trend appears to be uneven border-wide.

Del Rio continues to be busy. They are still getting large groups daily,” a Border Patrol official wrote to the Washington Examiner’s Anna Giaritelli, referring to the rural mid-Texas Border Patrol sector hundreds of miles east of El Paso that has been a top migrant destination since 2021. The official added that “The Rio Grande Valley along Texas’s Gulf Coast and Yuma in western Arizona have also remained top regions for arrests.”

In Yuma, Amanda Aguirre of the Regional Center for Border Health, the NGO that receives and transports migrants released from CBP custody, told the Arizona Daily Star that “the numbers of people they are helping has been enormous—up to 500 a day.” With the Center’s capacity overwhelmed, CBP began releasing migrants directly into Yuma on December 20, the city’s mayor, Douglas Nicholls, told El Paso Matters. Yuma is “just beginning to see… what we saw a year ago, and that is people walking through the community without going through Border Patrol,” he added.

In cities on Mexico’s side of the border, there is scant evidence that the Biden administration’s Title 42 expansion is deterring migrants.

In those cities, estimates of the number of asylum-seeking migrants awaiting an opportunity to cross to the United States range from 18,000 (Doctors Without Borders, cited this week), to at least 35,200 (according to “a Dec. 31 CBP internal report obtained by Yahoo News”), to 44,700 (“individuals on waitlists in ten Mexican border cities” in November, according to the University of Texas Strauss Center).

In Ciudad Juárez, across from a less-busy El Paso, shelters are 85 percent full and the Chihuahua state government Population Center (COESPO) “has been seeing between 200 and 400 migrants per day—a higher number than in the days prior to the end of Title 42 expulsions in late December,” according to Border Report.

The United States is expelling about 50 migrants per day into Ciudad Juárez, fewer than originally expected when the Biden administration expanded Title 42’s application, according to Alejandra Corona of Jesuit Refugee Services. Mexican immigration authorities are giving expelled families documents allowing them to remain in the country for 60 days; single adults may remain for just 15 days. Most of those expelled to Ciudad Juárez, Corona said, are not interested in applying for asylum in Mexico.

But migrants keep arriving in the city from the south, including thousands of Venezuelans led by “a lack of information about the new requirements, combined with the hope President Biden ‘will change his mind,’” COESPO official Enrique Valenzuela told Border Report. “Also, many Venezuelans who were waiting for the end of Title 42 in December haven’t left, and those expelled from the U.S. since then aren’t going anywhere, either.”

Further east in Piedras Negras, Coahuila, across from Eagle Pass, Texas, U.S. authorities have expelled about 3,000 Cuban migrants in just over a week, the Mexican daily Milenio reported.

In Matamoros, Tamaulipas, across from Brownsville, Texas, “more than 4,000 migrants are living on the street,” Doctors Without Borders humanitarian official Anayeli Flores told Mexico’s La Jornada. That includes at least 2,000 mostly Venezuelan migrants living in an encampment along the river, which received mention in a January 11 CBP Office of Intelligence report seen by Yahoo News. So far, Flores said, U.S. expulsions of Cubans, Haitians, or Nicaraguans “have not been detected” in Matamoros.

In Baja California and Sonora, Mexico, officials have “voiced concern about managing daily returns of approximately 200 migrants” expelled from the United States, the same CBP report notes.

In Sonora, the Arizona Daily Star reported, the Title 42 expansion “created immediate confusion among migrants who were already at the border and for many of the shelters and centers in Sonora that serve them.” A CBP document cited by Yahoo News claims that “Only 11 agents from Mexico’s immigration agency… are deployed along the entire border with Arizona.” Sonora’s state government buses the first 100 people expelled from Arizona each day to the state capital, Hermosillo. There, state official Bernardeth Ruiz Romero said that the government shelter accommodated 221 Cuban migrants in the days after the Biden administration’s Title 42 expansion.

In Baja California, where the largest border city is Tijuana, children of migrant families expelled by the United States or unable to ask for asylum there are posing a challenge to local schools. “Migrant students in Tijuana face stigma and learning challenges at public schools, where teachers receive little guidance on how to address their unique needs,” reported the San Diego Union-Tribune, citing a very high figure of at least 46,000 foreign students of 70 nationalities enrolled last year in Baja California’s school system.

Further south in Mexico City, the coordinator of the Casa Tochan migrant shelter told La Jornada that expelled migrants have recently arrived there. “They mainly continue to be Venezuelan, but there are also Nicaraguans.”

In the city of Tapachula, Chiapas, near Mexico’s southern border with Guatemala, Fredy Castillo of the Haitian Bridge Alliance told EFE that his humanitarian organization has “noticed an increase in people after the last U.S. decree [expanding Title 42]. There is a lot of misinformation from social networks (but that increase) is remarkable.” Some migrants in Tapachula “of diverse nationalities” told EFE “that they will seek to transit irregularly through the Latin American country [Mexico] until they reach the northern border in an attempt to challenge the new U.S. immigration program.”

The population of migrants stranded in Tapachula remains large. In the pre-dawn hours of January 16, a municipal police operation blocked migrants’ access to a public space in the city’s center where hundreds of them, mostly Haitians, had been gathering each day to earn small amounts of money by selling goods. The operation involved “no injuries,” according to La Jornada.

All along the migration route, “Mexico, Guatemala, Honduras, Costa Rica and Panama are facing limitations on capacity at migrant shelters, with some countries having to shutter shelters due to lack of funding,” according to a non-public December 15 report, produced by the DHS “Intelligence Enterprise’s Migration Indicators and Warnings Cell Migrant Fusion Cell,” cited by Yahoo News.

That report finds Costa Rica’s government “overwhelmed by the migration surge as well as the related health, education, and security costs.” It adds that in late July 2022, Panama’s government “notified the U.S. that it will begin limiting long-term detention for known or suspected terrorists and other special interest migrants, citing lack of funding and overcrowding and ‘lack of specific justifications for prolonged detention.’” Detaining a migrant costs Panama “between $55 and $65 per day.”

Guatemala’s government meanwhile issued a January 13 “yellow alert,” deploying additional police and soldiers to its border with Honduras, citing “the possible mass arrival of migrants at its borders in the coming days.”

The “CBP One” app, now used for Title 42 exemptions, quickly hits capacity

As discussed in WOLA’s January 13 Border Update, the Biden administration on January 6 began using a CBP smartphone app to manage asylum-seeking migrants’ applications to access a small but growing program of Title 42 exemptions for those deemed “most vulnerable.” Appointments available through the CBP One app, which can book appointments within a two-week window, quickly filled up.

Those who apply must be in Mexico above the 19th parallel (roughly north of a point just south of Mexico City). Those who get appointments may approach a land-border port of entry to request asylum. CBP will use Title 42 to expel them, though, if officers determine that the migrant does not meet “vulnerability” criteria.

“Vulnerable” migrants are those who have a physical or mental illness, a disability, are pregnant, lack safe housing or shelter in Mexico, have been threatened or harmed while in Mexico, or are under 21 or over 70 (or family members of migrants who meet these criteria). The criteria do not include LGBTQ status as a vulnerability.

The app replaces a less formal, often confusing Title 42 exemption process that had relied on recommendations of the most vulnerable migrants shared with CBP by NGOs, immigration attorneys, and other service providers. CBP had been granting about 180 exemption appointments each day at its San Ysidro port of entry south of San Diego, the border’s busiest, and about 70 per day in El Paso, the Associated Press reported. In Nogales, appointments averaged 60 per day.

Critics of the CBP One app have voiced concern about CBP’s use of location and other data that the app gathers, and the possibility that it could exclude some of the most threatened, who may lack smartphones and internet access.

Appointments for Title 42 exemptions using the app filled up very quickly. By January 16, a screenshot of the app shared by the Cato Institute’s David Bier showed no appointments available until at least January 31, and no ability to make an appointment until January 19.

“In Matamoros on 01/18, the available spaces for a POE appointment in Brownsville, TX, lasted approximately 90 minutes, after which the asylum seekers had to choose other ports until there were no more available,” tweeted Estuardo Cifuentes of Lawyers For Good Government’s Project Corazon in Texas’s Rio Grande Valley. In Matamoros, Voice of America talked to perplexed migrants who were only able to secure appointments dozens or hundreds of miles away, requiring travel through Mexico’s dangerous state of Tamaulipas.

“It’s like Ticketmaster but for asylum seekers — and then if you don’t get it, you don’t get it,” Erika Pinheiro of San Diego/Tijuana-based Al Otro Lado, a legal services non-profit, told the San Diego Union-Tribune. “There’s no queue of people who tried to get an appointment and didn’t get it.” Cato’s Bier tweeted, “The whole premise of the app was that people would not cross illegally if they knew that they could enter legally, but now they don’t know that they can. It defeats the purpose.”

New York’s mayor visits El Paso

New York City Mayor Eric Adams paid a January 14-15 visit to El Paso. There, he appealed to the federal government to provide funds and take other steps to help New York and other large cities accommodating a large number of arrivals of asylum-seeking migrants.

Adams’s city has been averaging about 400 daily arrivals of migrants who first come to the U.S.-Mexico border, including 875 on January 12, according to the New York Times. (If sustained over a year, 400 people per day would increase New York City’s population by nearly 2 percent.) “Over 36,000 people have gone through New York’s system, and roughly 24,000 are still in the city, according to the latest figures from the mayor’s office,” the Times added; according to Border Report, Adams cited a figure of 40,000 asylum seekers “welcomed” by New York City since last spring, adding that the city had received 3,100 people in each of the two previous weeks.

“We still have over 26,000 people still in our care,” including many in homeless shelters, the New York mayor said. The cost to the city of sheltering, feeding, schooling, and providing other services for newly arrived migrants could be “anywhere from $1.5 billion to $2 billion,” Adams told a New York radio station on January 13.

“In New York and Houston and Los Angeles and Washington, our cities are being undermined and we don’t deserve this,” Adams said in a press appearance with El Paso Mayor Oscar Leeser. “Migrants don’t deserve this and the people who live in the cities don’t deserve this.”

Many of the migrants arriving in New York and elsewhere—though probably not a majority—have arrived on buses funded by Texas Governor Greg Abbott, a Republican who has made a point of ensuring that cities and states run by Democrats feel the impact of the current increase in asylum-seeking migration. Mayor Adams voiced strong criticism of Abbott’s “disrespectful” and “wrong” busing effort, which the Texas state government carries out with no coordination with receiving cities’ local governments or NGOs. (Adams extended his rebuke to Colorado Gov. Jared Polis, a Democrat, who had briefly begun busing migrants to New York and Chicago until those mayors asked him to stop.)

On January 15, the Guardian published the story of a Colombian migrant mother whom Texas placed on a bus to Philadelphia, far from her intended destination, with a sick child. “Food was in short supply and there was no medical attention available.”

Mayor Adams toured a migrant processing center, visited the border wall, and spoke with migrants outside Sacred Heart Church in El Paso’s Segundo Barrio neighborhood, where many migrants receive humanitarian assistance. Outside the church, Adams struck a different tone than his “undermining” message, telling a cheering group of migrants, “We are fighting for you for an opportunity to work and experience the American dream.”

The Mayor called on the federal government for help. He asked the Federal Emergency Management Agency (FEMA) to provide more assistance to New York and other cities, and to coordinate more closely with local governments. He called on Congress to change the law to allow asylum seekers to obtain work authorizations earlier in the asylum process, so that they might be less dependent on public assistance to survive.

Chicago Mayor Lori Lightfoot said on January 15 that she “wholeheartedly” agreed with Adams’s call for more federal support, CBS News reported. In Miami, meanwhile, the city school district’s rolls increased by 14,723 foreign-born students during the current academic year, 9,935 of them from Cuba, Haiti, Nicaragua, and Venezuela, the Miami Herald reported.

CBP updates its vehicle pursuits directive

After years of increasing fatalities associated with Border Patrol’s chasing down suspected smuggling vehicles on border-area roads, CBP on January 12 made public a new directive on “Emergency Driving and Vehicular Pursuits.” It expands on a January 2021 directive—the first one that CBP ever made public, in November 2021—by spelling out more clearly when Border Patrol agents should engage in risky vehicle pursuits, when it makes sense to terminate a pursuit, and how the agency must report incidents afterward.

Border Patrol agents frequently pursue vehicles that agents suspect of transporting undocumented migrants or contraband, or otherwise violating the law. When suspect vehicles “fail to yield,” these pursuits on public roads, usually at high speeds, become hazardous. “As many modern police agencies move away from high-speed chases, placing tight restrictions on when their officers can pursue suspects, the Border Patrol allows its agents wide latitude to use them to catch people trying to enter the country illegally, a practice that often ends in gruesome injuries and, sometimes, death,” a 2019 ProPublica and Los Angeles Times investigation reported.

That investigation looked at over 500 reported vehicle pursuits along the U.S.-Mexico border between 2015 and 2019, finding that 1 out of every 3 ended in a crash, with at least 250 people injured and 22 killed. The ACLU of Texas and New Mexico documented 22 people killed as a result of Border Patrol vehicle pursuits in 2021, up from 14 in 2020 and 2 in 2019.

ACLU lawyers argued that CBP’s existing vehicle pursuit policy “gives agents too much discretion in determining the risk to public safety,” the New York Times reported in January 2022. Under the existing policy, “What we see in practice is that agents will engage in pursuits really on the basis of zero information and under any circumstances,” Shaw Drake, then an attorney with ACLU of Texas, told the Associated Press. In May, CBP’s commissioner at the time, Chris Magnus, announced that the agency would be revising this policy following an extensive review process, which would include learning other law enforcement agencies’ best practices.

“Critically, this policy does not prohibit pursuits. CBP’s unique border security mission requires that it retain the ability to pursue vehicles,” reads the agency’s January 12 release. It does, however, clarify the “reasonableness” standard that agents must consider before engaging in, and while persisting in, a high-risk vehicle pursuit. The new policy defines “Objectively Reasonable” as follows:

When the Governmental Interest in apprehending a subject at the moment outweighs the Foreseeability of Risk to the public, other law enforcement, and vehicle occupants. It is the constant responsibility of all officers/agents involved in a Vehicular Pursuit to continue weighing Pursuit Risk Factors if a Subject Vehicle continuously Fails to Yield to an Authorized Officer/Agent’s authority. If after weighing these factors, a Pursuit is no longer Objectively Reasonable, the Pursuit must be Terminated consistent with the requirements of this directive. Objective Reasonableness is based on the totality of the circumstances known by the officer/agent at the time of the event rather than the advantages/benefits of post-incident hindsight.

The new directive will become effective in May 2023.

The announcement came just days after a January 8 Border Patrol vehicle pursuit in Santa Teresa, New Mexico, west of El Paso, that ended in a crash that killed two and injured eight aboard the fleeing vehicle. Three days earlier, near Hachita, New Mexico, a vehicle rolled over, injuring two aboard, in a pursuit incident that followed the rare shooting of a Border Patrol agent, who was wearing body armor and emerged unharmed.

Other News

  • A letter from three Senate Democrats, reported in The Hill, raised alarms about federal inaction against armed private militia groups operating along the U.S.-Mexico border. “Absent federal action cracking down on their unauthorized behavior, vigilante groups will continue to operate and weaken the government’s ability to maintain migrant safety, protect human rights, and defend the rule of law at the border,” reads the communication from Sens. Ed Markey (D-Massachusetts), Elizabeth Warren (D-Massachusetts), and Cory Booker (D-New Jersey) to Attorney General Merrick Garland and Homeland Security Secretary Alejandro Mayorkas.
  • A document from the National Immigrant Justice Center lays out a set of principles for a more humane system to receive migrants at the border, based on coordination with local government and civil society, “non-custodial, humanitarian reception centers at the border,” and large investments in asylum processing and humanitarian needs.
  • A Human Rights First fact sheet condemns the Biden administration’s proposal to issue a “transit ban” rule making it very difficult for asylum seekers to apply for protection in the United States if they did not first apply in a country through which they passed en route to the U.S. border. Almost 300 organizations, including WOLA, sent a letter to Biden expressing “alarm and condemnation” of  this proposed rule.
  • A Cuban migrant woman died in Border Patrol custody on January 2 in Eagle Pass, Texas, CBP reported. The cause of death, perhaps, was heart failure.
  • Since November, Ecuadorians have been the number-one nationality of migrants passing through Panama’s Darién Gap jungles; in April 2022, Mexico suspended its visa exemptions for Ecuadorians, making the air route complicated for those not qualifying for tourist visas. “According to Ecuadorians who have already arrived in the United States or are awaiting passage in Mexico,” reported Spain’s El País, “migrants are sold the Darién route as a complete package that leaves Quito, passes the Rumichaca bridge on Colombia’s southern border, and arrives in the jungle. However, some do not appreciate the harshness of the journey.” (For now at least, Ecuador is not among the countries whose citizens Mexico accepts as land-border Title 42 expulsions.)
  • A 2022 Gallup poll found that about 30 percent of Latin Americans—which would be roughly 140 million people—“would like to move to another country permanently if they could.” Of those, about a third, perhaps 46 million, would move to the United States.
  • In Mexico’s violent border state of Tamaulipas, the state police’s “elite” U.S.-trained unit, the Special Operations Group or GOPES, is getting a name change and losing about a quarter of its members, according to Elefante Blanco. Now to be called the Special Forces of the State Guard, the unit is under a cloud of human rights and corruption allegations, including members’ role in a January 2021 massacre of migrants.
  • “It’s unclear how much the federal government will have to spend to remediate the damage in the Coronado National Forest. Or whether it will remediate” following the Arizona state government’s takedown of a “shipping container wall” built between gaps in the border fence on federal land, reported Melissa del Bosque at the Border Chronicle.
  • After consulting with “stakeholders,” CBP is releasing a new plan for border wall replacement south of San Diego, near the Pacific Ocean. This apparently includes a plan to reopen “Friendship Park,” a 1970s-era space where U.S. and Mexican citizens were once able to interact. Now, as in the recent past, interactions will have to occur between fence bollards.
  • Mexican immigration agents found three Salvadoran unaccompanied children, sisters aged nine, six, and one year old, stranded on an islet in the Rio Grande near Eagle Pass, Texas and Piedras Negras, Coahuila.
  • “President Biden has let cartels run rampant on the border,” wrote Rep. Mark Green (R-Tennessee), the new chairman of the House of Representatives’ Homeland Security Committee. Rep. Green is among 50 Republican sponsors of the “Border Safety and Security Act,” one of the first pieces of legislation to be introduced by the new House Republican majority. That bill would expel most undocumented migrants—including asylum seekers—encountered at the border, and suspend the right to seek asylum until DHS achieves “operational control” of the border. A letter to Congress signed by 250 U.S. organizations, including WOLA, calls this bill part of “an alarming uptick in hateful rhetoric and violence targeting asylum seekers and immigrants in the United States.”

Weekly U.S.-Mexico Border Update: January 13, 2023

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:

  • President Joe Biden announced an expansion of the Title 42 pandemic expulsions policy, recently prolonged by the U.S. Supreme Court, to encompass citizens of Cuba, Haiti, and Nicaragua, earning strong criticism from migrant rights’ advocates. The announcement came with a new “humanitarian parole” policy for those countries’ citizens, and plans to expand use of a CBP app to process protection-seeking migrants’ requests. Biden then paid a brief visit to El Paso en route to a meeting of North American leaders in Mexico City.
  • Mexican border cities are bracing for the first arrivals from these expanded Title 42 expulsions.
  • U.S. border cities received visits over the past few days from 11 U.S. senators: a bipartisan delegation that went to El Paso and Yuma, and an all-Republican delegation that visited Del Rio.

Migration a central issue as Biden visits El Paso and Mexico City

U.S. border and migration policy started 2023 with an eventful week. To recap:

  • In a January 5 policy speech, President Joe Biden announced an expansion of the Title 42 pandemic policy to encompass new nationalities’ land-border expulsions into Mexico, along with a new humanitarian parole program for citizens of those nationalities. (WOLA’s January 6 Border Update discussed this new policy at length.)
  • On January 8, President Biden paid a visit to El Paso, Texas.
  • On January 9 and 10, President Biden was in Mexico City for a summit of North American leaders, at which migration was a principal issue.
  • On January 12, U.S. Customs and Border Protection (CBP) began employing its “CBP One” smartphone app to manage applications for Title 42 exemptions, granted to asylum seekers deemed most vulnerable.

Policy changes

Biden gave his January 5 White House speech nine days after the Supreme Court ruled that the Title 42 pandemic expulsions policy must remain in place for months pending later decisions. As discussed in WOLA’s January 6 update, up to 30,000 citizens per month from Cuba, Haiti, and Nicaragua are now subject to rapid Title 42 expulsion into Mexico if they are apprehended at the U.S.-Mexico border, regardless of their stated need for asylum or other forms of protection in the United States. Mexico now accepts land-border Title 42 expulsions of eight countries’ citizens, including its own.

The same monthly number of those countries’ citizens may access a two-year humanitarian parole status in the United States i, which requires them to have a sponsor in the United States, a valid or recently expired passport, and passage of a background check. The first two hurdles, in particular, stand in many would-be parole applicants’ way.

Part of the parole application process involves registration via the CBP One smartphone app, which the agency has been rolling out “as a single portal to a variety of CBP services.” The Biden administration announced that the app will now also play a major role in asylum processing. As of January 12, asylum seekers must use the app to access a system of exemptions to Title 42, applying from outside the United States for appointments to present themselves at certain land ports of entry.

Over the past year, CBP has been granting a slowly expanding number of exemptions to Title 42, allowing asylum seekers who “meet specific vulnerability criteria” to approach land-border ports of entry on appointment. This initiative had relied on vulnerability recommendations made by humanitarian groups, immigration lawyers, and other service providers, with at times uncomfortable results. As of January 12, CBP intends for the CBP One app to become the main channel for seeking exemptions.

This use of the app is “an experiment,” an unnamed senior administration official told CNN. “Work is underway to build out the portal and is expected to come together in the next several months.” Critics of the process worry about CBP’s use of location and other data that the app gathers, and the possibility that it could exclude some of the most threatened. “Asking people fleeing for their lives to download an app and wait for months in their home country, where they are in mortal danger, is next-level cynicism,” wrote Melissa del Bosque at the Border Chronicle.

President Biden’s policy speech, further detailed by the Department of Homeland Security (DHS), included other proposals. For migrants who cannot be expelled easily under Title 42, DHS plans to increase use of “expedited removal”: migrants who do not specifically claim fear of persecution if returned, or who fail a credible fear interview with an asylum officer, will be repatriated quickly. It is not clear how broadly the expedited removal policy might expand, as DHS would incur significant cost removing migrants by air.

Migrant advocates are alarmed by a DHS and Department of Justice (DOJ) plan to issue a proposed rule that would deny asylum, with exceptions, to migrants who pass through other countries on their way to the U.S.-Mexico border. The so-called “transit ban” proposal resembles on the surface a policy that the Trump administration implemented in 2019, only to see it struck down by a federal court in 2020. Migrants who “circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified,” a DHS document explained. DHS Secretary Alejandro Mayorkas said that further details about this proposed rule will be “available in the coming weeks.”

Four Democratic senators joined advocacy groups’ opposition to the proposed “transit ban,” warning in a statement that it “will disregard our obligations under international law by banning families from seeking asylum at the border, likely separating families and stranding migrants fleeing persecution and torture in countries unable to protect them.” Mexico’s chief diplomat for North America, Roberto Velasco, told the New York Times that any so-called “safe third country” attempt to send asylum seekers back to Mexico to apply for asylum there “is a red line for us… it would overwhelm the system.” Added Ana Lorena Delgadillo of Mexico’s non-governmental Foundation for Justice, “Mexicans are fleeing violence in their own communities. How are we going to protect others if we cannot protect our own?”

A White House document relating President Biden’s visit to Mexico City mentioned a few other small initiatives on migration cooperation.

  • The United States would help Mexico establish a migrant resource center in its southern-border city of Tapachula, from where people would be able to access information about how to apply to migrate to the U.S. and obtain assistance in Mexico. Confusingly, though, at the North American leaders’ joint January 10 press appearance in Mexico City, Mexican President Andrés Manuel López Obrador said, “We are not thinking of building any center in the southeastern part of Mexico—any migration center. We’re not thinking of that. What we do is help with shelters, with healthcare services, with food services as well.”
  • The United States, Canada, and Mexico committed to “sharing best practices to increase promptness, efficiency, and fairness for the asylum processing systems.”
  • They agreed to counter “xenophobia and discrimination against migrants and refugees by promoting balanced public narratives on migrants and refugees to support their meaningful inclusion in the region.”
  • They committed to increase coordination on a strategy to crack down on northbound drug trafficking and southbound weapons trafficking. The presidential visit came just days after a bloody Mexican operation in Sinaloa state that captured the son of jailed drug lord Joaquín “El Chapo” Guzmán, a reputed top figure in the Sinaloa Cartel organized-crime network.

As they reduce access to asylum and send a message of tightening at the border, the announced policy changes “were viewed as a win for presidential advisers with a background in national security over the more-liberal immigration policy advocates who are also part of Biden’s team,” the Washington Post reported.

Still, the measures, and Biden’s decision to visit the U.S.-Mexico border for the first time in his presidency, faced sharp criticism from the right. “This checks a box, but it doesn’t even begin to solve the problems we are facing there,” Sen. Shelley Moore Capito (R-West Virginia), the ranking Republican member of the Senate Appropriations Subcommittee on Homeland Security, told the Washington Post. “Your visit to our southern border with Mexico today is $20 billion too little and two years too late,” read a letter that Texas Gov. Greg Abbott (R) handed President Biden upon his arrival in El Paso. A letter from 14 Republican members of Texas’s House of Representatives delegation called on Biden to take even harder steps, like getting Mexico to agree to revive the Trump-era “Remain in Mexico” program. America First Legal, the far-right NGO led by former Trump White House advisor Stephen Miller, promised to “pursue every available legal remedy” to block the Biden administration’s expansion of humanitarian parole, which it called a “colossal horror.”

Biden’s proposals faced strong criticism from backers of the right to seek asylum. Sen. Bob Menendez (D-New Jersey), chairman of the Senate Foreign Relations Committee, called the Title 42 expansion “a disastrous and inhumane relic of the Trump administration’s racist immigration agenda.” Andrea Flores, who worked on immigration policy in the White House during the Biden administration’s first year and is now an advisor to Sen. Menendez, told the Washington Post that the new policy could send “bona fide asylum seekers” back to danger in Mexico, while allowing well-connected migrants facing less danger to access protection using an app. “Democrats must refuse to participate in Republicans’ games with people’s lives,” added a statement from the House Progressive Caucus.

“It’s enraging and sad to see a Democratic administration make it harder for vulnerable people to seek asylum all because they’re scared of angry MAGA voters on this issue,” a member of the Congressional Hispanic Caucus (CHC) told CNN. Both CNN and CBS News reported on a blistering virtual meeting White House and DHS officials held with Democratic CHC members. The legislators said they felt “blindsided” by the announced policy changes, which had not been consulted with them. “The lawmakers were ‘pissed’… ‘It was pretty brutal,’” CBS reported that a participant in the meeting said.

The UN Refugee Agency (UNHCR), which has stated several times its opposition to Title 42 because it blocks the internationally recognized right to seek asylum, repeated that position in a January 6 statement published to the United Nations’ main website. “What we are reiterating is that this is not in line with refugee law standards and that to establish a link between safe and legal pathways which have been announced and of course we welcome the expansion of those on one side that are accessible for some people with curtailment for the right to seek asylum for many more who are ineligible for these pathways,” said UNHCR spokesperson Boris Cheshirkov.

Asked about the policy changes’ critics, Biden replied, “both the extremes are wrong. It’s a basic middle proposition.” He repeated an administration talking point portraying the October 12, 2022 expansion of Title 42 expulsions to Venezuelans as a “success,” noting that the arrival of Venezuelan migrants at the border “has dropped off dramatically…from 1,100 persons trying to enter to—per day—to 250 a day.”

El Paso

The President was in El Paso, Texas for four hours on the afternoon of Sunday, January 8. CNN called it a “tightly controlled” (AP said “highly controlled”) tour of a stretch of border wall and a port of entry facility, followed by a meeting with community leaders at El Paso County’s recently established Migrant Services Center. Biden did not interact with any migrants. “Biden’s visit to the border got him a small bit of rhetorical breathing room and certainly brought him closer to the problem in a literal sense,” wrote Washington Post analyst Philip Bump. “It didn’t get him closer to a solution.”

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Migration Through Panama’s Darién Gap

248,284 people migrated through Panama’s once-impenetrable Darién Gap jungle region in 2022.

Here’s 2022 by month, showing a steep drop in Venezuelan migration (blue) after the Biden administration, in October, started using Title 42 to expel Venezuelan asylum seekers into Mexico.

Ecuador (green) has since been 1st among the ~40 nationalities migrating through Darién.

These are visualizations of data from Panama’s migration agency (click on the links with “Irregulares en Tránsito Frontera Panamá – Colombia”).

Weekly U.S.-Mexico Border Update: January 6, 2023

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:

  • President Biden is to visit the U.S.-Mexico border before a January 9-10 North American Leaders’ Summit in Mexico. In a January 5 border policy speech, he announced a new humanitarian parole program for citizens of Cuba, Haiti, Nicaragua, and Venezuela. This comes with an expansion of Title 42 expulsions of these countries’ citizens back to Mexico if they do not, or can not, avail themselves of the new humanitarian program.
  • The Supreme Court ordered that the Title 42 pandemic authority remain in place while it considers whether Republican state governments can challenge its court-ordered termination, which had been scheduled for December 21, 2022. The abrupt shift increased confusion in cities on both sides of the U.S.-Mexico border, as squalid encampments have sprung up in Matamoros, Reynosa, Tapachula, and possibly elsewhere.
  • Protesters and a federal lawsuit compelled Arizona’s outgoing state government to remove thousands of shipping containers stacked to fill gaps in the border wall. Gov. Doug Ducey’s (R) container-wall project cost about $95 million to build and about $76 million to dismantle. His successor, Democrat Katie Hobbs, is dropping a lawsuit challenging federal jurisdiction over border-adjacent land.

Biden to visit border, announce Venezuela-style Title 42 expansion

While on a January 4 visit to Kentucky, President Joe Biden told reporters that he plans to visit the U.S.-Mexico border before a January 9-10 meeting in Mexico City with the leaders of Canada and Mexico. Asked what he would like to see when he visits, Biden responded, “Peace and security. No, I’m going to see what’s going on. I’m going to be making a speech tomorrow on border security, and you’ll hear more about it tomorrow.”

Biden will visit El Paso, Texas. Of the nine sectors into which the U.S. Border Patrol divides the U.S.-Mexico border, the El Paso sector led all others in migrant arrivals in October and November. (December data are not yet available.)

In a January 5 speech, Biden rolled out dramatic expansions of both a “humanitarian parole” procedure for citizens of Cuba, Haiti, Nicaragua, and Venezuela, and of expulsions of those countries’ citizens from the border back into Mexico under the still-in-force Title 42 pandemic authority. These are explained in documents from the Department of Homeland Security (DHS) and the White House, and in Federal Register entries laying out the parole process for Cubans, Haitians, Nicaraguans, and Venezuelans

The administration will model its program for asylum-seeking migrants from Cuba, Nicaragua, and Haiti on a program applied to Venezuelan migrants since October. The Venezuela policy led to a sharp reduction in arrivals of Venezuelan asylum seekers at the border and afforded several thousand an opportunity to obtain a temporary documented status in the United States. But it has also left thousands more stranded and vulnerable inside Mexico and elsewhere along the migration route from South America.

On October 12, the administration offered a two-year humanitarian parole status in the United States, with a work permit, to up to 24,000 Venezuelan migrants who applied online, had valid or recently expired passports, and had someone inside the United States willing to sponsor them. Once approved for parole, Venezuelans are able to fly to the United States.

If encountered at the U.S.-Mexico border, however, Venezuelan migrants are subject to immediate expulsion back to Mexico—with Mexico’s full agreement—under the Title 42 pandemic authority, recently prolonged by the U.S. Supreme Court (see this update’s next section). The expulsions occur regardless of migrants’ expressed need to apply for asylum.

The October 12 decision made Venezuela the fifth nationality of migrants whose Title 42 expulsions Mexico accepted across the land border (in addition to those from Mexico, El Salvador, Guatemala, and Honduras). It led Title 42 expulsions of Venezuelans to jump from 87 in September 2022 to 6,411 in October and 5,298 in November. It contributed to a drop in encounters with Venezuelan migrants from 33,804 in September to 7,931 in November. And it caused migrant shelters and encampments in Mexican border cities to fill with thousands of Venezuelan migrants who suddenly had nowhere to go.

On January 5, President Biden announced that Mexico will accept land-border Title 42 expulsions of three more nationalities: Cubans, Nicaraguans, and Haitians, for a total of eight nationalities subject to land-border expulsion. Mexico will allow up to 30,000 expulsions per month of these three countries’ citizens and Venezuelans.

That will come with an expansion of the humanitarian parole program for up to 30,000 citizens per month from these countries and from Venezuela. (November 2022 migrant encounters from those four countries totaled 82,286.) Only citizens from those countries with U.S. sponsors and passports will qualify for these 30,000 monthly humanitarian parole spots.

As the expanded Title 42 expulsions represent a new block to the legal right to seek asylum in the United States, human rights advocates had responded with alarm to a December 28 revelation, in a story broken by Reuters, that it might happen. “The Biden-Harris administration seems intent on doubling down on President Trump’s xenophobia and cruelty,” read a December 29 statement from the #WelcomeWithDignity campaign. “This move would go far beyond what any court has required, dispelling any pretense that this administration is interested in turning the page,” said Melissa Crow of the Center for Gender and Refugee Studies. That day, staff at the Nogales-based Kino Border Initiative reported the arrival of seven expelled Nicaraguans at its shelter on the Mexican side of the border.

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Title 42 is still with us for many more months. Perhaps a year or more.

The Supreme Court just voted 5-4 to stay lower courts’ termination of the Title 42 pandemic order, which has expelled migrants from the U.S.-Mexico border 2.5 million times since March 2020, often without a chance to seek asylum. The Court is keeping the controversial measure in place while it decides whether Republican-run states can go ahead with a challenge.

Title 42 is not a public health measure. The Centers for Disease Control and Prevention found it unnecessary back on April 1. It’s an internationally condemned block to the right to seek protection, and it’s generating profound misery.

Migrant Encounters in Border Patrol’s El Paso Sector

For a second straight month, El Paso is the number-one sector for migrant encounters, among Border Patrol’s nine U.S.-Mexico border sectors. In March, El Paso was number five.

Nicaragua (dark gray, 15,305 migrants) was the number-one nationality in November. In October, number one was Venezuela (dark red, 17,807 migrants

Nationalities of migrants at the US-Mexico border, September to November

(For all countries whose citizens were encountered at least 1,000 times in a month):

  • Largest increases:
    • Ecuador +120%
    • Russia +110% (a record, Russia is now in the top 10)
    • Nicaragua +88% (a record)
    • Cuba +32% (second most in a month)
  • Largest decreases:
    • Venezuela -77% (a result of Title 42 being applied, as of mid-October, to expel Venezuelans into Mexico)
    • Brazil -59%
    • El Salvador -12%
    • Honduras -10%
  • Colombia is now #4.

Title 42 Must End. Here are Five Reasons Why

Just posted at wola.org, drafted by WOLA’s communications team with much input and edits from Maureen Meyer and me. As Title 42’s end date nears a Supreme Court showdown, here in 1,280 words are 5 reasons why it should terminate, as soon as possible.

Title 42 Must End. Here are Five Reasons Why (in <1,300 words):

  1. It’s illegal
  2. It wasn’t designed to protect public health
  3. It creates a discriminatory system
  4. It puts people in need of protection in further danger
  5. It undermines the U.S. ability to promote a protection-centered response to regional migration

Read the whole thing here.

Title 42 didn’t deter migration

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.)

Weekly U.S.-Mexico Border Update: December 16, 2022

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.”

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Weekly U.S.-Mexico Border Update: December 9, 2022

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 Title 42 pandemic expulsions authority is scheduled to terminate in less than two weeks, in accordance with a November court ruling. A Biden administration appeal will not change that date, but a challenge from Republican state governments might. The Senate may soon consider a still-unpublished bill that could prolong Title 42 for a year in exchange for giving legal status to “Dreamers.” Meanwhile, preparations for a post-Title 42 reality continue: shelters are anticipating increased populations, and the Biden administration is considering other means to block or limit asylum seekers, including something similar to the Trump-era “transit ban.”
  • Migration through Panama’s Darién Gap declined by 72 percent from October to November. The main reason appears to be an October expansion of Title 42 that made it impossible for citizens of Venezuela to pursue asylum in the United States. The number of Venezuelan citizens in the Darién dropped by 98 percent.
  • In November, Mexico’s asylum system received its largest monthly number of applications in a year. Applications from citizens of Venezuela, now denied the chance to seek protection in the United States, increased by 27 percent over October.

What’s next after Title 42, if it ends on December 21

It is now less than two weeks from December 21, when, in accordance with a November 15 court ruling, the Title 42 pandemic authority is to end. Title 42 has expelled about 2.5 million people without a chance to seek asylum since the Trump administration first implemented it in March 2020.

The administration appeals

On December 7, the Biden administration’s Justice Department informed D.C. District Judge Emmet Sullivan of its intent to appeal Sullivan’s November 15 ruling. The administration, however, is not seeking to prolong the current Title 42 order. The Justice Department filing does not ask for Judge Sullivan’s ruling to be paused: its intent appears to be to preserve the executive branch’s future ability to employ Title 42 to expel migrants for public health reasons.

The Justice Department stated that it would seek to put this case on hold while the U.S. Fifth Circuit Court of Appeals (Louisiana and Texas) considers its appeal of another case: a Louisiana district court’s decision that had prevented the Biden administration from ending Title 42 in May 2022. The Louisiana decision had taken issue with the administration’s process for terminating Title 42, which it had planned to end on May 23. Judge Sullivan’s decision struck down the use of Title 42 entirely.

Meanwhile, 19 Republican state governments are asking Judge Sullivan to suspend his ruling. If he does not do so—as appears likely—the states could seek to have the D.C. Circuit Court of Appeals and the Supreme Court hear the case. Should those higher courts agree to do so, and should they decide to stay (suspend) Judge Sullivan’s decision while appeals proceed, then Title 42 would remain in place for some time after December 21.

While the legal maneuvering proceeds, a Biden administration official told CBS News that the Department of Homeland Security (DHS) “continues to charge full speed ahead in preparing for Title 42 to lift on December 21.”

(For more background on this confusing narrative, see the timeline of major Title 42 developments at the end of this section.)

Possible legislation

On December 5, the Washington Post’s Greg Sargent revealed that Sen. Kyrsten Sinema (D-Arizona) and Sen. Thom Tillis (R-North Carolina) were negotiating a bipartisan bill to resolve the situation of “Dreamers”—up to 2 million undocumented people who were brought to the United States as children and know no life in any other country.

The current legislative session, which ends on December 31, could be the last chance to find a legal solution for Dreamers. The House of Representatives elected in November will have a slight Republican majority, and its leadership has indicated fierce opposition to any softening of immigration policy. The Obama administration executive order that had found a temporary solution for about 700,000 Dreamers (Deferred Action for Childhood Arrivals, DACA) was ruled illegal by a Texas judge in 2021, and the future of appeals leading to the conservative U.S. Supreme Court appears grim.

To entice Republicans to vote for a legal status for Dreamers, the Sinema-Tillis legislation, Sargent and others report, might:

  • increase resources for migrant processing,
  • hire more border agents,
  • increase prosecutions of improper border crossers,
  • quickly remove those who don’t qualify for asylum, and—most controversially—
  • extend Title 42 expulsions for at least another year.

Sen. Bob Menendez (D-New Jersey) has expressed “serious concerns” about the proposed bill, especially the proposal to prolong Title 42, which could cause hundreds of thousands more expulsions of migrants, many of them asylum seekers. A statement from several non-governmental groups (including WOLA) under the #WelcomeWithDignity campaign opposes “a shocking proposal to extend Title 42 for another year and additional proposals that would indefinitely curtail asylum rights.”

To move forward under Senate rules (the filibuster), this bill would require 60 senators to vote to end debate and allow a vote. Assuming that all 50 Democrats back this bill—far from certain, due to progressives’ discomfort with the Title 42 extension—Sinema and Tillis would need to convince 10 Republicans to allow it to come to a vote. That may prove very difficult, as Congress approaches the final two or three weeks of its session still needing to pass the entire 2023 federal budget and the Defense Department’s authorization.

On December 8, Sen. Tillis indicated that he and Sen. Sinema expect to finalize their bill language by Friday, December 9.

Preparations for an increase in migration

It is reasonable to expect protection-seeking migration to increase at the border after December 21, if Title 42 does truly end on that date. Data, presumably from CBP, leaked to Fox News point to 207,000 migrant encounters at the border in November, which is similar to October (it is not clear whether the number includes migrants encountered at ports of entry).

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