With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. This is a “double issue,” longer than normal, as White House actions led to an especially heavy news week. You can get these in your e-mail each week by joining WOLA’s “Beyond the Wall” mailing list.

White House issues much-anticipated executive orders

President Joe Biden issued three migration-related executive orders on February 2. One issues guidelines for welcoming new legal immigrants. One proposes a framework for addressing Western Hemisphere migration and for the asylum system. And one seeks to reunite families separated by the Trump administration’s “zero tolerance” policy.

The orders’ issuance coincided with the Senate’s confirmation of Biden’s Department of Homeland Security (DHS) Secretary, Alejandro Mayorkas, by a 56 to 43 vote. Six Republicans voted for Mayorkas: Mitt Romney (Utah), Susan Collins (Maine), Lisa Murkowski (Alaska), Rob Portman (Ohio), Shelley Moore Capito (West Virginia), and Dan Sullivan (Alaska). Portman and Capito are the ranking Republicans, respectively, on the Senate’s Homeland Security Committee and Homeland Security Appropriations Subcommittee.

For the most part, the executive orders neither fully institute new policies nor fully revoke Trump-era policies. Language often calls on executive branch agencies and officials to “consider” taking these moves. There may be legal reasons for wording the orders this way, to blunt potential litigation against them. But the indirect language and lack of timelines has some migrant rights’ advocates concerned.

Measures outlined in the orders include:

• Establishing a cabinet-level task force to reunify families separated during the entire Trump administration. This task force is asked, among other items, to produce recommendations for “the possible exercise of parole” so that parents in Central America may rejoin children who remain in the United States.
• Preparing a “Strategy for Addressing the Root Causes of Migration,” which will form the framework of a U.S. diplomatic and assistance package. Unlike past “security-first” aid packages for Latin America, this strategy prioritizes combating corruption, promoting human rights, countering violent crime, combating sexual, gender-based, and domestic violence, and addressing economic challenges.
• Consulting with a broad range of stakeholders, including the Mexican government, on “collaboratively managing migration.” Measures include helping Mexico improve its own reception of migrants, including growing numbers of asylum seekers, from Central America and elsewhere.
• Leaving intact for now—but “promptly begin[ning] consultation and planning… to develop policies and procedures” to change—the March 2020 Centers for Disease Control (CDC) order closing the border to asylum seekers due to COVID-19. Under this order, often called “Title 42” for the relevant section of the U.S. Code that underlies it, Customs and Border Protection (CBP) rapidly expelled migrants 393,000 times between March and December. Some of those expelled needed protection from threats to their lives.
• Leaving intact, but ordering DHS to “promptly review and determine whether to terminate or modify,” the Migrant Protection Protocols or “Remain in Mexico” program, which sent more than 70,000 non-Mexican asylum seekers to await their U.S. hearings in Mexico over the past two years. More than 28,000 still have cases pending, and of those who have been ordered removed, less than 3 percent had legal representation. The February 2 order calls for prompt consideration of “a phased strategy for the safe and orderly entry into the United States” of those with pending cases. On January 20, DHS announced it would stop enrolling new asylum seekers into “Remain in Mexico.” However, right now, under Title 42, most Central Americans are being expelled quickly into Mexico without a “Remain in Mexico” court date—though Mexico may be partially changing that, as discussed below.
• Ordering the Departments of Justice and Homeland Security to “promptly review and determine whether to rescind” so-called Safe Third Country Agreements that the Trump administration signed with El Salvador, Guatemala, and Honduras, committing those countries to allow the U.S. government to send them other countries’ asylum seekers. The only one of these agreements that went into operation was Guatemala’s, which sent 945 non-Guatemalan asylum seekers to Guatemala between November 2019 and the programs’ COVID-related suspension in March 2020. None of the 945 received asylum in Guatemala.
• “Consider[ing] taking all appropriate actions” to reinstate the Central American Minors Program, a small program, terminated by the Trump administration, that allowed some children to apply for protection at U.S. embassies and consulates instead of crossing Mexico alone.
• Undergoing a 270-day process to promulgate new regulations undoing the Trump administration’s steady narrowing of the definition of who qualifies for asylum.
• Reviewing, with likely intent to rescind, several restrictive rules associated with Stephen Miller’s attempts to make asylum and other legal immigration statuses harder to obtain.

As most of this language falls short of making firm commitments, “officials have found themselves pleading for patience, saying they are constrained by President Trump’s tangle of executive orders and administrative restrictions on immigration, as well as by public health concerns amid the COVID-19 pandemic,” as the Los Angeles Times’ Molly O’Toole put it. “We want to act swiftly, we want to act promptly, but we also need to make sure we are doing that through a strategic policy process,” said White House press secretary Jen Psaki. The New Yorker cites the work of a team of students led by Yale and Stanford professor Lucas Guttentag, which identifies 1,058 changes that the Trump administration made to the U.S. immigration system.

Numerous human rights organizations, including WOLA, continue to call on the Biden administration to move more quickly, particularly to end misuse of the Title 42 expulsions of asylum seekers. A long list of public health experts, led by Columbia University’s Mailman School of Public Health, sent a January 28 letter raising earlier recommendations for how lifting these measures can be done safely during the pandemic.

Much ire is directed at the persistence of “Remain in Mexico,” which has caused untold misery in Mexican border cities. As Erika Andiola of RAICES Texas told the Texas Tribune, “There’s nothing to ‘review’ about a policy that leads to people getting beaten, tortured and kidnapped regularly, as they wait like sitting ducks on the southern border.” Linda Rivas of the El Paso-based Las Américas Immigrant Advocacy Center told CNN that she “has been trying to console her clients this week, including a Honduran mother who said she had been raped while waiting in Mexico.” Elsewhere in El Paso—where a witness to the 2019 Wal-Mart shooting was swiftly deported this week—Tania Guerrero of CLINIC told the Dallas Morning News, “We need to know what the game plan is. It’s a lot of confusion. And, people are losing hope.”

On February 1 the Biden administration asked the Supreme Court to postpone two cases that were scheduled for arguments later in the month: challenges to “Remain in Mexico” and to President Trump’s use of a national emergency declaration to channel Defense Department budget funds, without congressional approval, into border wall construction. The Court agreed to take the arguments off the calendar. “Had Trump remained in office, it is very likely that the Supreme Court would have upheld both programs,” noted a Vox analysis, citing conservative justices’ unwillingness to halt either, even as lower courts ruled against them.

Mexico stops taking other countries’ expelled families

Note: while this section reproduces what was being reported in major U.S. media as of late on the 4th, some sources at the border—in public and in communications with us—question whether Mexico has, in fact, changed its policy. While it appears that there’s some increase in families being released into the U.S. interior, at least in Texas, Mexican refusals to take expelled Central American families are localized, not nationwide.

As noted above, under the Title 42 pandemic order, CBP expelled migrants into Mexico 393,000 times between March and December. Of those, according to an information request that the online journalism outlet Animal Político sent to the Mexican government, 17,129 of migrants expelled into Mexico through November were Central American. Others may have been from Cuba, Venezuela, or elsewhere. And on February 3, in a highly irregular and still unexplained move, CBP expelled dozens of Haitians into Ciudad Juárez.

On February 3 the Washington Post revealed that, at some border crossings, Mexico has started rejecting expulsions of non-Mexican families. This began before Joe Biden’s inauguration, in response to a November law mandating that Mexico’s immigration detention centers must no longer hold children and families.

This “has prompted U.S. Customs and Border Protection to release more parents and children into the U.S. interior,” five unnamed U.S. officials told the Post. A CBP spokesperson said that some of the agency’s facilities have reached “maximum safe holding capacity. Per longstanding practice, when long-term holding solutions aren’t possible, some migrants will be processed for removal, provided a notice to appear, and released into the U.S. to await a future immigration hearing.” This is happening in the Rio Grande Valley sector of south Texas, but not yet at other border crossings like Nogales, where CBP continues to expel non-Mexican families.

A sudden increase in releases would present “a massive problem,” Rubén García of El Paso’s Annunciation House—one of a small number of charity-run respite centers for asylum-seeking migrants released into border cities—told El Paso Matters. “Right now, we probably could reasonably handle upwards of 300 people” due to social distancing requirements, he said. Without his shelter’s services, “I think that what [Border Patrol] would do is go back to releasing them on the street there by the Greyhound bus station.”

A central reason for the Biden administration’s cautious undoing of the Trump administration’s policies is fear of such a “wave” of migration at the border. A “Central American official who closely monitors migration dynamics” told the Post that migrant smugglers have been intensifying “their marketing efforts” in rural Guatemala. “They’re saying Biden has given the green light” in their sales pitches, the unnamed official said.

Border Patrol agents have begun feeding information to Fox News and similar outlets about “steady increases in apprehensions, especially among Central American families and unaccompanied children in their sectors—specifically the Rio Grande Valley and Tucson, Arizona, sectors. One agent in Texas told Fox News that in three out of the last seven days, there were at least 800 arrests in their sector, up from about 450 a day just a few months ago.”

Mexico arrests police officers for January 22 migrant massacre

On February 2, 11 days after the burned remains of 19 people—most of them migrants—were found along a northern Mexican roadside near the U.S. border—authorities in violence-battered Tamaulipas state made a surprising announcement. The state attorney general ordered the arrest of 12 state police agents on charges of committing the massacre.

So far, only four of the bodies had been identified: two migrants from Guatemala, and two Mexicans “with a history of migrant smuggling.” The remaining victims are believed to be Guatemalan migrants. At least one was probably a man who had lived for 26 years in the United States, been deported, and had hoped to return to his wife and child in Mississippi. DNA test results are still pending.

A motive for the police agents’ crime is unknown. It is all too common in Tamaulipas state, however, for organized crime to infiltrate police forces. Tamaulipas is the site of a heated rivalry between criminal groups that engage in drug trafficking, most prominently the Gulf Cartel and a remnant of the Zetas, the Northeast Cartel.

Some of the 12 arrested officers are members of the GOPES, Special Operations Public Security Group, an elite SWAT-type unit within the Tamaulipas state police force. GOPES was launched in August 2020, replacing a unit accused of serious human rights abuses.

Troublingly, in August 2020, when GOPES launched, a report in the Mexican newspaper Milenio stated that the unit “carried out trainings with U.S. authorities,” along with Mexican Marines. We do not yet know whether this is accurate, and if so what the training involved. U.S. assistance for units with questionable human rights records, like Tamaulipas state police, is rare and tends to focus on issues like human rights, proper use of force, or proper judicial and evidence procedures. But we still don’t know.

Meanwhile, Animal Político published a disturbing revelation about the Mexican government’s response to abuse of migrants. The country’s nominally independent human rights ombudsman’s office, the Comisión Nacional de Derechos Humanos (CNDH), had collected 32 documents’ worth of accounts of torture, amputations, rapes, and murders of migrants traveling through Mexico—some of them with the participation of security and immigration forces—covering September 2019 through February 2020. But the CNDH, which is supposed to advocate for victims and seek to hold abusers accountable, sat on this information. The failure to inform about these abuses casts further doubt on the independence of CNDH President Rosario Piedra Ibarra, who has been questioned for her closeness to President Andrés Manuel López Obrador.

Links

• The Health and Human Services Department’s Office of Refugee Resettlement (ORR) is opening an “overflow” shelter to hold up to 700 unaccompanied migrant children at least 13 years of age, in Carrizo Springs, Texas. Normally, children stay in such facilities for days or weeks before being placed with relatives or other sponsors. As of late January, there were 4,730 unaccompanied migrant children in ORR care, less than a third of the agency’s population during the 2019 child and family migration wave.
• Whistleblowers who formerly had internal affairs roles at DHS accuse top Border Patrol and other DHS officials of obstructing investigations into agents’ notorious killing of Mexican citizen Anastasio Hernández, beaten to death at California’s San Ysidro port of entry in May 2010. Among those named is Rodney Scott, Border Patrol’s current chief. Affidavits filed in a case before the Inter-American Human Rights Commission, the Intercept reports, contend that the killing was “emblematic of an entrenched pattern in matters involving the Border Patrol, particularly in cases of lethal force.” 
• A Border Patrol agent fatally shot a man trying to enter the United States near the Hidalgo Port of Entry in south Texas on January 29. CBP, DHS’s Inspector-General, and the FBI are currently investigating the shooting, the Associated Press reported.
• Two Arizona humanitarian organizations, No More Deaths and the Coalición de Derechos Humanos, published a report alleging that while Border Patrol has all but monopolized emergency response in the border zone, the agency has a poor record of responding to calls for rescue from lost migrants dying in the desert.
• Under Title 42 pandemic measures, CBP has been expelling migrants at remote desert border crossings with very few services, and where bilateral agreements normally prohibit the U.S. government from deporting people. This includes crossings like Sonoyta, across from Lukeville Arizona; Sásabe, Arizona-Sonora; and Puerto Palomas, across from Columbus, New Mexico. Mexican government data indicate Sonoyta and Puerto Palomas have been the number two and three points for expulsions of Central Americans. Number one is Reynosa, Tamaulipas, perhaps Mexico’s most violent border city.
• At the Intercept, Ken Klippenstein details an ugly power struggle within the DHS Inspector General’s Office that crippled the agency’s ability to perform effective oversight of the Trump administration at a crucial moment for human rights.
• At the Texas Tribune, Julián Águilar warns that the immigration courts’ backlog—1.3 million cases, including 360,000 asylum cases—means years-long waits that could frustrate efforts to undo Trump’s asylum policies. It argues that hiring more judges won’t be enough.