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.”

While Velasco did not specify this, the implication is that the Biden administration is asking Mexico to continue accepting land-border removals of some third countries’ citizens. Mexico is insisting that the Biden administration expand its humanitarian parole program, whose recipients may arrive by air instead of crossing Mexican territory. It wants the U.S. government to “continue the diplomatic dialogue” with countries, like Cuba, Nicaragua, and Venezuela, that are sending many migrants but have poor diplomatic relations with Washington, and for more U.S. development aid to countries from which large numbers of people are migrating.

Mexico’s migration authority (National Migration Institute, Instituto Nacional de Migración, INM) announced the closure of a tent facility in Tapanatepec, Oaxaca, which it employed for 134 days to process migrants, thus alleviating pressure on the crowded Mexico-Guatemala border-zone city of Tapachula. At its height, this small town in Mexico’s Isthmus of Tehuántepec was hosting 15,000 migrants waiting for the INM to distribute temporary documents allowing them a number of days to transit Mexican territory. “More than 135,000 migrants had passed through the camp, 50,000 of them just in October,” the Associated Press reported.

Mexico has periodically recurred to issuing these travel documents to migrants from countries to which deportation is difficult. As doing so makes it easier to reach the U.S. border, this practice generates displeasure from U.S. officials. With the Tapanatepec facility closed and, presumably, INM emitting fewer transit-enabling documents, plus more enforcement along the northward route, the city of Tapachula (population about 350,000) may again fill with blocked and stranded migrants.

Between the Washington DC Circuit Court action, the proposed Biden administration restrictions, and negotiations with Mexico, the right to seek U.S. asylum at the border is virtually certain to remain deeply truncated after December 21.

Migration to El Paso exceeds 2,000 people per day

As recently as March, Border Patrol’s El Paso sector, which incorporates the environs of Texas’s westernmost city and the entire New Mexico border, was fifth in migrant encounters, among the nine sectors into which the agency divides the border. Since October, El Paso has shifted into first place, overwhelming local services, and increases appear to be continuing in December.

During the late afternoon and early evening of December 11, well over 1,000 migrants crossed the Rio Grande at once from downtown Ciudad Juárez to El Paso. There, lighting campfires to ease nearly freezing temperatures, they waited on the paved riverbank, in a long, orderly line, to turn themselves in to Border Patrol and ask for asylum. Agents “called up a dozen people at a time and boarded them onto buses to be processed into the country—or quickly expelled under the Title 42 policy,” the Texas Tribune described the scene.

A majority of this group came from Nicaragua, which is not one of the four countries (plus Mexico) whose expelled citizens Mexico has agreed to receive under Title 42. After Mexico agreed in October to accept expulsions of Venezuelans, “our demographics changed to Nicaraguans,” a Border Patrol El Paso spokesperson told the El Paso Times. An official told the Washington Examiner that the past week’s migrants to El Paso “have been primarily from Ecuador and Nicaragua.”

A Border Patrol spokesperson told the Texas Tribune that migrant encounters along the El Paso sector’s 268 border miles have averaged 2,150 per day so far in December, roughly a quarter of the border-wide total. The sector had seen a similar number in October, but at the time Border Patrol was using a mobile processing unit along the riverbank that was able to handle the flow without images of long lines of migrants. The agency dismantled this facility  in early December, though, “in anticipation of coming wintry weather,” the spokesperson told the El Paso Times.

The Washington Examiner reported that the increase in arrivals has exceeded the capacity of Border Patrol’s El Paso Sector Central Processing Center, a facility to which the agency takes migrants to perform background checks, intake and asylum paperwork, and other functions. Hundreds of migrants have had to wait outside amid a wave of cold temperatures.

Between December 9 and 11, Border Patrol released an average of 398 processed migrants per day into El Paso shelters, county facilities, or “to the streets,” according to Texas Tribune. “Over the previous month, the average was 151 per day.”

This has surpassed the capacity of El Paso’s shelters, which seek to provide released migrants with a short-term place to stay and assistance with travel to their destinations in the U.S. interior. Upon arriving at El Paso’s airport late on December 13, WOLA staff saw dozens of released migrants sleeping on the floors of the departures and arrivals areas, covered by the Mylar and Red Cross-branded blankets they had been given while in Border Patrol custody.

Many of the migrants who crossed the border on December 11 were part of a group of roughly 1,500 multinational, but mostly Nicaraguan, individuals whom Mexico’s National Guard had reportedly rescued from a criminal band that had retained them in the northern state of Durango. The criminals, whom some witnesses said were wearing police uniforms, had kidnapped at least nine groups of migrants after stopping their buses, and were holding them at two rural locations, demanding payments in exchange for letting them go.

After the National Guard and local Mexican authorities freed the group, they boarded the migrants on buses, which they escorted through the state of Chihuahua to its principal border city, Ciudad Juárez, across from El Paso. Though Chihuahua’s governor complained about the authorities’ escorting of the buses, most of the migrants had transit documents allowing them to be present, temporarily, in Mexico. The National Guard indicated that it was escorting the vehicles, whose occupants had been victims of a crime, but was not transporting the migrants to the U.S. border.

The El Paso Times reported witnessing 20 buses arriving at Ciudad Juárez’s federal and municipal migrant shelters on Sunday afternoon. It appears that most of the migrants did not stay in those shelters, opting instead to cross directly into the United States, lining up along the Rio Grande. “We decided to pass through all at once, because we are a little afraid to stay in Juárez,” a Nicaraguan man told La Verdad.

Texas Gov. Greg Abbott (R) responded by ordering Texas state police to carry out truck safety inspections at the El Paso side of the border, jamming commercial traffic along at least one of the border bridges from Ciudad Juárez. Abbott had ordered a similar measure across several Texas border crossings for days in April, costing business as much as $9 billion in losses.

While the large group of formerly kidnapped migrants passed into El Paso on December 11, a Ciudad Juárez migrant shelter operator told the New York Times that large numbers of migrants were continuing to cross the Rio Grande on the 12th.

Activists block Arizona’s “shipping container wall” in Republican governor’s last days

In a 7,000-word narrative at the Intercept, Ryan Deveraux profiled Arizona environmental activists whose campaign of protests has halted, at least for now, the outgoing Republican governor’s effort to build a wall of empty shipping containers through sensitive federal national forest lands. The protesters appear to have achieved what the Biden administration could, or would, not.

In August, Gov. Doug Ducey (R) issued an executive order to fill in gaps left in the border wall in early 2021, after the Biden administration halted the Trump administration’s breakneck building pace.

Ducey began by ordering hundreds of shipping containers, topped with razor wire, stacked along border-wall openings near Yuma. Most recent migrants to Border Patrol’s Yuma sector have been asylum seekers turning themselves in to U.S. authorities. Asylum seekers need only to be on U.S. soil in order to petition for protection, so the shipping containers, built a few hundred yards inland from the Yuma border (the Colorado River), did not prevent that. (A Yuma official explained to WOLA in November that the barrier did prevent asylum seekers from trampling nearby farmers’ fields as they waited to turn themselves in.)

The Arizona governor ordered a second, larger phase of shipping-container construction in October, just before elections in which Arizonans chose a Democrat to succeed him. Starting in late October, construction crews began laying a double-height wall of empty containers, welded together, along a 10-mile stretch of border in Cochise County, in the state’s southeast. This phase of the project, using up to 3,000 containers, is costing Arizona at least $95 million, most of it paid to AshBritt, a Florida-based contractor “which has deep ties to the Republican Party,” according to the Intercept.

Nearly four miles of containers have gone up in the Coronado National Forest, which is federal land administered by the Department of the Interior. At the Guardian, Melissa del Bosque described “rusting hulks, topped with razor wire and with bits of metal jammed into gaps.”

Environmentalists are alarmed that in addition to being an eyesore, the containers block migratory routes for endangered jaguars, ocelots, and other species. “There was no environmental review or planning or mitigation that was done,” Emily Burns of the Arizona-based Sky Island Alliance told del Bosque.

Gov. Ducey had filed a suit claiming that the part of the Coronado National Forest immediately along the border is state, not federal, land. The federal Department of Justice filed a motion to dismiss Ducey’s suit, but the Biden administration has taken no action to stop the Arizona state government’s heavy machinery from laying down the containers.

On December 13, DHS authorized CBP to move forward with minor border wall construction projects including “closing small gaps and installing gates” in Border Patrol’s San Diego, Yuma, and El Paso sectors. (The Cochise County site is in Border Patrol’s Tucson sector.)

Katie Hobbs, Arizona’s Democratic governor-elect, has said she will stop the shipping container wall construction after her January 5 inauguration. She has not committed, though, to removing what Ducey has been building, citing costs and adding that she is “looking at all the options.”

Fearing that Ducey might finish the 10-mile wall before he leaves office, Arizona activists intensified protests in November. They “recently stopped work by standing in the way of vehicles in the middle of the night, not moving while one driver of a bulldozer drove so close to the people protesting they were touching the machinery,” the Arizona Daily Star reported. Several, among them Russ McSpadden, a videographer who has extensively documented the project and its environmental impact, have set up an encampment (“Camp Ocelot”) at the construction site.

“Not a single container has been placed in eight days” due to the protesters’ efforts, McSpadden told del Bosque in an article that the Border Chronicle published December 13.

The activists’ opposition has been amplified by the sheriff of neighboring Santa Cruz County, David Hathaway, who has threatened to arrest, and charge with “illegal dumping,” anyone who seeks to place containers within his jurisdiction. (The container-wall project’s existing contract does not contemplate construction in Santa Cruz, whose seat is Nogales.)

Other news

  • DHS Secretary Alejandro Mayorkas visited Ecuador (December 7-8) and Colombia (December 8-10), meeting with high officials and discussing migration, among other topics. In Ecuador, Mayorkas warned that DHS was expelling Ecuadorian migrants by air, and awarded a Transnational Criminal Investigative Unit (TCIU, assisted by ICE Homeland Security Investigations) that had helped break up “a human smuggling organization that was illegally transporting Ecuadorians to the United States.” In Colombia, Mayorkas praised Colombia’s accommodation of Venezuelan refugees, but had no public response to the Bogotá government’s request for Delayed Enforced Departure (DED) status for undocumented Colombians living in the United States. The U.S. and Colombian governments are to host a conference in the first quarter of 2023 “to look at measures that would guarantee rights for migrants heading north to the U.S. border,” Reuters reported.
  • On a largely party-line vote, the House of Representatives passed the Veteran Service Recognition Act, which would protect noncitizen U.S. military veterans from deportation and ease the return of deported veterans.
  • Al Jazeera talked to a migrant, deported to Honduras, who was gravely wounded in an August 2021 vehicle pursuit incident near El Paso. The vehicle, driven by a U.S. citizen smuggling his passengers, lost control, killing two people, including the driver. While Border Patrol claimed that the vehicle lost control, the Honduran migrant said that agents caused the accident by clipping the pursued vehicle with their truck.
  • “Cuba is depopulating,” phrased a New York Times headline about the severe economic and political conditions that caused about 2 percent of the island’s population to flee to the United States, by sea and overland to the U.S.-Mexico border, in just the past year.
  • “The persecution and expulsion of migrants seems to me to be an irresponsibility on the part of the governments of countries like Guatemala and Mexico,” Francisco Pellizari, the priest who runs Guatemala City’s Casa del Migrante, told EFE. “We are talking about a filter at the service of the United States.”
  • Fentanyl, frequently trafficked through border ports of entry, “is so powerful that a year’s supply of pure fentanyl powder for the U.S. market would fit in the beds of two pickup trucks,” noted the first entry in a Washington Post investigative series on the drug.
  • The San Diego Union-Tribune revealed examples of asylum seekers in Tijuana being compelled to pay steep fees to local service providers to access CBP’s small number of exemptions to Title 42 for “most vulnerable” migrants. Currently, at the busy San Ysidro port of entry between Tijuana and San Diego, “180 people are allowed to cross each day through the exemption program.”
  • Employees of the district attorney’s office in the border county of Starr, Texas face a federal criminal complaint of using a county vehicle to smuggle migrants over 50 times since June.
  • A coalition of activists, including Witness at the Border, is in the midst of a “Journey for Justice” caravan from Brownsville to San Diego, witnessing conditions along the way and holding vigils and protests against hardline border and migration policies.