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.
Title 42’s gradual loosening continues
The UN High Commissioner for Refugees, Filippo Grandi, issued an unusually direct statement on May 20 voicing alarm about a major state’s treatment of protection-seeking migrants. Grandi called on the U.S. government “to swiftly lift” the pandemic measure known as “Title 42,” for the part of the U.S. Code that allows border closures during quarantines. Since March 2020, Title 42 has swiftly expelled more than 750,000 undocumented migrants apprehended at the border back to Mexico or their countries of origin—including nearly all migrants who would seek asylum or other protection.
The Trump administration justified the mass expulsions in the name of public health, though later reporting revealed that the Centers for Disease Control and Prevention (CDC) did not view it as necessary to expel asylum seekers. Still, the Biden administration has maintained the expulsions order, with no timetable for lifting it.
“The use of Title 42 is not a source of pleasure, but rather frankly, a source of pain,” Department of Homeland Security (DHS) Secretary Alejandro Mayorkas said on April 30, adding “the timeline is as quickly as possible.” Todd Miller, the official performing the duties of Customs and Border Protection (CBP) commissioner, told the House Appropriations Committee on May 19 that his agency is “preparing for the eventuality of Title 42 to be lifted.”
The UNHCR statement calls on the United States “to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.” Grandi acknowledges that in its first four months, the Biden administration has been building capacity—CBP’s Miller mentioned five “soft-sided,” or tent-based, processing facilities coming online near ports of entry—and is now allowing a few vulnerable asylum-seekers to present in the United States. “A system which allows a small number of asylum seekers to be admitted daily, however, carries with it a number of risks, and is not an adequate response.”
As noted in last week’s update, DHS has stopped a program of daily flights that were transporting asylum-seeking Central American families from parts of the border where Mexico was not allowing expulsions with young children, to other parts of the border where Mexico does allow such expulsions. That update also noted an agreement with the American Civil Liberties Union (ACLU), which has been in negotiations with the Biden administration over a lawsuit challenging Title 42 expulsions of families, to allow 35 of the most vulnerable expelled family members to re-enter the United States to pursue their protection claims on U.S. soil.
That number expanded this week. The ACLU told CBS News on May 18 that DHS has agreed to allow up to 250 of the most vulnerable asylum seekers to present inside the United States each day. “So far, 2,000 asylum-seekers have been admitted into the U.S. through the ACLU’s negotiations with the Biden administration,” the ACLU’s Lee Gelernt told CBS.
The modest increase in access to asylum is a stopgap measure. The 250 would be identified by advocacy groups. This “puts the burden of deciding who gets access on NGOs, which is really not our role,” Tracey Horan of the Kino Border Initiative in Nogales, Arizona told Public Radio International (PRI). The loosening of Title 42 is no substitute for the ACLU lawsuit, Gelernt told PRI. “We are troubled, to say the least, that the Biden administration has chosen to keep a Trump administration policy that was always a sham, was never justified by public health.”
Meanwhile, about 700 expelled asylum seekers remain stranded in the dangerous border city of Reynosa, Tamaulipas, Mexico. A tent encampment in the Plaza de la República near the port of entry is to be moved about a mile west to a space next to Reynosa’s church-run Senda de Vida shelter.
Remain in Mexico continues to unwind
The Biden administration meanwhile continues a slow but steady unwinding of the Trump administration’s Migrant Protection Protocols, or “Remain in Mexico,” policy, which in 2019 and 2020 sent more than 71,000 asylum-seeking migrants from Spanish and Portuguese-speaking countries back across the border into Mexico to await their U.S. hearings. After canceling Remain in Mexico on January 20, the administration has been working with UNHCR and other humanitarian agencies to bring asylum seekers into the United States to pursue their claims.
As of the end of April, Syracuse University’s TRAC Immigration data project reports, 8,387 asylum seekers had been brought into the United States under the Remain in Mexico unwinding. Another 18,087 people with open cases remained in Mexico. By May 14, the number permitted to enter the United States had risen to 10,707, a UN official told Border Report. “They’re extremely happy to be back. The program is unwinding extremely well. It was well thought out, well planned,” added Ruben Garcia of El Paso’s Annunciation House shelter.
Beyond the approximately 26,500 who still had open cases when the Biden administration took over, many migrants subject to “Remain in Mexico” had missed their court dates in the United States due to security reasons or other obstacles to showing up at a Mexican border city’s port of entry at the appointed time. Some were even being held by kidnappers when they were supposed to appear in court. As a result, U.S. immigration courts threw out their asylum claims because they were no-shows. BuzzFeed reported this week that DHS officials “have agreed that those ordered deported in absentia should have their cases reopened.”
One migrant subject to “Remain in Mexico” who will never get the chance to pursue his asylum case in the United States is Cristian San Martín Estrada, a citizen of Cuba. Estrada had been waiting in Mexico since 2019, when he was returned as an 18-year-old asylum seeker. He was scheduled to re-enter the United States “in the coming days,” according to a tweet from the UN High Commissioner for Refugees. Cristian San Martín Estrada was shot to death in Ciudad Juárez on the evening of May 17.
Documents reveal a CBP counter-terror unit’s focus on asylum lawyers
The Santa Fe Dreamers Project, a public interest law firm, shared with ProPublica’s Dara Lind some documents obtained from CBP through a Freedom of Information Act lawsuit. They reveal that U.S. asylum lawyers were flagged and interrogated by a secretive CBP unit, its “Tactical Terrorism Response Team,” apparently based on questionable and politicized intelligence.
El Paso-based asylum lawyer Taylor Levy (interviewed about her work in a May 2020 WOLA podcast) tells ProPublica that CBP held her for hours at the port of entry in January 2019, when she returned from dinner with friends in Ciudad Juárez. ProPublica reports, “She didn’t know why she was being questioned by an agent who’d introduced himself as a counterterrorism specialist,” along with attorney Héctor Ruiz.
The documents revealed that the Tactical Terrorism Response Team was acting on incorrect intelligence alleging that Levy had met with members of a October 2018 migrant “caravan.”
These “caravans”—migrants who, seeking to avoid having to pay a smuggler, attempted to cross Mexico in large groups for safety in numbers—never added up to more than a single-digit percentage of migration from Central America to the United States. Today, Mexican or Guatemalan forces tend to disperse caravans long before they get anywhere near the U.S. border.
Nonetheless, the caravan phenomenon had alarmed the Trump administration and conservative media outlets, leading the president to send active-duty troops to the border, where some remain today. Now we know that the Trump administration also devoted CBP’s counter-terrorism resources to caravan-related missions, and that it cast its net so widely as to include asylum lawyers.
Among the documents newly released to the Santa Fe Dreamers Project is a remarkable mid-2019 Border Patrol intelligence report from El Paso, which reads more like a Breitbart editorial than the work of intelligence professionals:
Mass migration from South America into the United States is said to be coordinated at some level by non profit organizations who wish to line their pockets with proceeds deriving from migrants transportation fees up to the U.S Mexico border, and ultimately proceeds deriving from the migrants paying for their asylum case lawyers once they have arrived to the United States.
The report, ProPublica states, “goes on to associate this effort with ‘other groups such as Antifa,’” which is not in fact a “group.”
Taylor Levy’s colleagues recall that she was critical of the migrant caravan tactic, and had not met with its members, nearly all of whom went to Tijuana, not Ciudad Juárez. Ruiz, the other lawyer, had spoken to an assembly of caravan participants when they passed through Mexico City, advising them about the stringency of U.S. asylum law and the low probability that those with unclear claims would be allowed to stay.
Levy and Ruiz “also recall being asked about their beliefs,” ProPublica continues. “Levy remembers an agent asking her why she worked for a Catholic aid organization if she didn’t believe in God, while Ruiz told ProPublica they were asked about their opinions of the Trump administration and the economy.”
A modest increase in unaccompanied children, amid concerns about emergency shelters
After weeks of steady decline, including a sharp drop during May 9-13, Border Patrol encountered a larger number of non-Mexican unaccompanied migrant children during May 16-19. The agency averaged 393 encounters with unaccompanied kids so far this week, similar to the 387 daily encounters two weeks ago but up sharply from last week’s 268.
This may just be a normal fluctuation, while arrivals of unaccompanied kids remain over 100 per day fewer than they were in late March and early April. Other possible explanations could be seasonal variation, as May is often the heaviest month of the year for migration; smugglers adjusting to Mexico’s increased migrant interdiction efforts; more parents expelled under Title 42 making the gut-wrenching decision to separate and send their children across the border alone; or an increase in children from one or two particular countries.
The number of “encountered” children in Border Patrol’s holding facilities remains a tiny fraction of what it was, an average of 736 per day this week, compared to more than 5,000 at the end of March. This means that the agency remains able to hand unaccompanied kids over quickly to the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services (HHS). A 2008 law requires that ORR shelter non-Mexican children while seeking to place them with relatives or other sponsors in the United States, with whom they stay while the immigration court system considers their asylum or protection needs. (Most Mexican children are quickly deported, as the law allows, regardless of their protection needs.)
As of May 19, ORR had 19,344 unaccompanied migrant children in its shelter system. The agency expanded its capacity by hastily opening up 13 emergency facilities around the country, at sites like convention centers, tent camps, and a U.S. Army base, Fort Bliss, in El Paso.
Unlike ORR’s normal shelters, these emergency facilities are not licensed childcare facilities: instead, they more closely resemble shelters for hurricane evacuees, with rows of cots in giant rooms and few activities to pass the time. On May 14 HHS Secretary Xavier Becerra visited one such site, at the Long Beach, California convention center. He acknowledged that conditions at the various emergency facilities vary “site by site.”
Child welfare advocates have voiced alarm. Lawyers permitted to visit facilities under the 1997 Flores settlement agreement described to CBS News “limited access to showers, soiled clothes and undercooked food” and children feeling “sad and desperate,” even suicidal.
“As of late April,” CBS notes, “more than 300 migrant boys had spent over 50 days at a Dallas convention center” with no ability to go outside. At Fort Bliss, “multiple white tents…each house about 900 children, who sleep on bunk cots.” About 4,400 children are currently at the army base, and the number could grow to 10,000 as the pandemic’s ebbing causes other facilities, like convention centers, to revert to their original purposes.
“I know the administration wants to take a victory lap for moving children out of Border Patrol stations—and they deserve credit for doing that,” Leecia Welch of the National Center for Youth Law, one of the lawyers permitted to tour some facilities, told the New York Times. “But the truth is, thousands of traumatized children are still lingering in massive detention sites on military bases or convention centers, and many have been relegated to unsafe and unsanitary conditions.”
Under great pressure to do so, ORR has been working to speed its discharges of children from shelters to families and sponsors. The agency has discharged an average of 481 children per day this week, down slightly from over 500 during the previous two weeks. An HHS official told CBS News that children are spending an average of 29 days in its shelters, down from 42 days in late January. Obstacles to faster discharges include a shortage of case officers and the time-consuming nature of vetting relatives and sponsors, including background checks, to ensure that children will be safe with them.
- The Department of Homeland Security (DHS) is closing two ICE detention centers where alleged abuses of inmates had been widespread. The Irwin County Detention Center in Ocilla, Georgia gained notoriety last September when women detained there said they had been subject to non-consensual hysterectomies and other surgeries. Also closing is the C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts.
- On May 12, DHS requested that the Defense Department extend the Trump administration’s National Guard deployment at the border beyond September 30, when fiscal year 2021 ends. “The Department is currently considering that request,” Defense Department spokesman Lt. Col. Chris Mitchell said on May 18. Defense Department press secretary John Kirby would not confirm whether a post-September border presence would include active duty troops in addition to National Guardsmen, an unusual deployment that Trump launched in 2018. About 4,000 guardsmen remain at the border.
- The number of internal affairs officers at CBP—professionals who investigate claims of corruption, human rights abuse, or other malfeasance—increased from 174 in 2015 to 252 in 2019. The agency would need about 750, the Cato Institute reports, to have a ratio of agents to internal affairs officers comparable to that of the New York Police Department.
- Lawyers working with the Biden administration have located 54 more parents whom the Trump administration separated from their children in 2017 and 2018. “Now the parents of 391 children have yet to be reached, down from 445 in April,” NBC reported. Roughly 1,000 families remain separated overall. Meanwhile, as BuzzFeed reminds, it is still CBP policy to separate asylum-seeking children traveling with non-immediate relatives, like aunts or uncles.
- The latest Metering Update from the University of Texas Strauss Center finds 18,700 names of asylum seekers waiting their turn to approach still-closed ports of entry in eight Mexican border cities—a 15 percent increase from February. The authors warn that border cities’ waitlists have become an inexact indicator of trends: many on the lists have since sought to cross between ports of entry, returned or been deported to their countries of origin, or moved elsewhere in Mexico, while new asylum seekers continue to arrive and don’t always sign on.
- “Rather than attempting to drive down migration through more-stringent enforcement, Biden officials in recent weeks have been seeking to change the perception that high border numbers equate with a crisis, a failure, or even something manifestly negative,” reports Nick Miroff at the Washington Post.
- January 23 was the date that Tamaulipas, Mexico stopped taking back expelled non-Mexican families with children under age 7, according to House Appropriations testimony from Todd Miller of CBP. After Mexico and Central America’s “Northern Triangle” countries, Miller revealed, the next six countries whose citizens Border Patrol is currently apprehending at the border are Ecuador, Cuba, Brazil, Venezuela, Haiti, and Nicaragua. More Brazilians are arriving “on the western flank” of the border.
- On May 27 at 11am ET WOLA is hosting with a webinar with the Fray Matías de Córdova Human Rights Center, La 72 Migrant Shelter, and the Jesuit Migration Network-Guatemala about the impact of migration enforcement policies in Mexico and Guatemala. You can register for the event here.