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 IN BRIEF:
The U.S. Congress is considering the 2024 federal budget and a supplemental budget request for Ukraine, Israel, Gaza, and the U.S.-Mexico border. In exchange for approval—especially for the supplemental request—Republican legislators are demanding changes to border and migration policy, including a series of measures that would severely curtail the right to seek asylum in the United States. Democrats are opposed, but signal that they are willing to discuss some concessions on asylum, possibly including a higher standard that asylum seekers must meet in initial “credible fear” interviews.
The International Crisis Group and Human Rights Watch issued in-depth research reports about migration in the treacherous Darién Gap jungle region straddling Colombia and Panama, through which about half a million people have migrated so far this year. Both find stark gaps in government presence and a powerful role for organized crime, along with frequent and severe abuses of migrants passing through the zone. Recommendations recognize the complexity of the situation, and focus largely on efforts in source and transit countries to address the causes of migration, improved integration of migrants especially from Venezuela and Haiti, and better cooperation and coordination between states.
Brief updates look at Costa Rica’s and Panama’s policy of busing northbound migrants through their territory; at Nicaragua’s increasing use as an initial arrival point for migrants from Cuba, Haiti, and elsewhere; and at the situation of thousands of migrants stranded in Chiapas and Oaxaca in southern Mexico.
THE FULL UPDATE:
Congressional Republicans demand hardline border measures, including radical cuts to asylum
Two major budget items requiring near-term approval are before the U.S. Congress. To win their support, members of the Republican Party, which controls the House of Representatives and 49 of 100 Senate seats, are demanding a border security crackdown and vastly diminished access to the U.S. asylum system.
The budget measures are:
- The 2024 federal budget, which Congress has yet to approve even though the U.S. government’s fiscal year began on October 1. A stopgap spending measure, approved on September 30, held spending at 2023 levels through November 17. If Congress fails to approve a new budget or extend the deadline by then, the U.S. government will undergo a “shutdown.”
- A $106 billion request for “supplemental” spending, in addition to the 2024 budget plan, which the Biden administration sent to Congress on October 20. Amid assistance for Ukraine, Israel, and Gaza, the request includes $13.6 billion for border security and migration priorities.
House Republicans had tried and failed to add border demands to the temporary measure that passed on September 30. They drew these demands from H.R. 2, the “Secure the Border Act of 2023,” which passed the House on May 11. As it would adopt measures extreme enough to block access to asylum for nearly all who seek it in the United States, H.R. 2 had passed without a single Democratic legislator’s vote.
It is not clear whether Republicans might seek to attach elements of H.R. 2 to the 2024 budget measure that must pass, in some form, by November 17. House Republican leadership is still developing its proposal.
Republicans have, however, prepared a list of border and migration demands as conditions for passage of the Biden administration’s Ukraine-Israel-border supplemental request. These demands draw heavily from H.R. 2.
Calling themselves the “Republican Working Group,” three Republican senators—Lindsey Graham (R-South Carolina), James Lankford (R-Oklahoma), and Tom Cotton (R-Arkansas)— issued a one-page document on November 6 summarizing the border and migration proposals that they demand be included in spending measures like the supplemental.
In addition to resumed border wall construction and more pay for Border Patrol agents, the Republicans’ proposal would add a series of limits to asylum that would make protection in the United States nearly impossible to attain for people arriving at the U.S.-Mexico border.
If this proposal were to become law, the Graham-Lankford-Cotton measures would deny asylum to a protection-seeking migrant unless:
- That migrant sought asylum, and was rejected, in every country through which they passed en route to the United States.
- That migrant presented at a land-border port of entry (official border crossing), even though CBP strictly limits asylum seekers’ access to these facilities.
- That migrant could not be sent to a third country to seek asylum there.
- In an initial “credible fear” interview within days of apprehension, that migrant managed to meet a higher screening standard, proving that they were “more likely than not” to face loss of life or freedom if returned. (The current credible fear standard is a “significant possibility” of such harm.)
If an asylum seeker clears those hurdles, the Republican senators’ proposal would require them to await their court hearings in Immigration and Customs Enforcement (ICE) detention—even if they are a parent with children—or while “remaining in Mexico,” as occurred during the Trump administration.
“If these proposals are implemented, more people who have no choice but to flee for their lives will be sent back to once again face persecution and harm. Some will die,” reads a November 9 letter to President Joe Biden from about 200 non-governmental organizations, including WOLA. “The harm will fall disproportionately on Black, Brown and Indigenous refugees who are already marginalized globally.”
Some top Senate Democrats rejected the Republican proposal.
- “They know full well what they came up with is a total non-starter,” said Majority Leader Sen. Chuck Schumer (D-New York). “Senate Republicans basically copy and pasted large chunks of the House’s radical H.R. 2 bill and that’s their asking price for helping Ukraine.”
- “The recent proposal that revived Trump’s border wall, closed our doors on asylum seekers and rewrote immigration laws is not going to go anywhere,” said Sen. Patty Murray (D-Washington), chair of the Senate Appropriations Committee.
- “Today’s proposal from my Republican colleagues is not a good starting point—it is not consistent with American values and it would not secure our border,” said Sen. Dick Durbin (D-Illinois), chair of the Senate Judiciary Committee.
- “If Republicans want to have a serious conversation about reforms that will improve our immigration system, we are open to a discussion. We disagree with many of the policies contained in the new Senate Republican border proposal,” said a White House spokesperson quoted in The Hill.
Nonetheless, reports point to signs that Democrats may be prepared to give ground on some of these demands.
- In calls with Democratic legislators and immigration policy advocates, Politico reported, top Biden administration officials have been warning that they “will have to swallow compromises on asylum law in order for the president’s national security funding request to pass.”
- In a November 6 statement, White House spokesperson Angelo Fernández Hernández said the Biden administration was prepared for a “serious conversation” about a migration policy compromise.
- “It’s not that I necessarily agree with what’s being proposed by Republicans, but I do believe we should look for incremental improvements that can be executed in a 10-day or six-week legislative timeframe,” said Sen. Brian Schatz (D-Hawaii) at a November 8 hearing of the Senate Appropriations Committee.
- Sen. Joe Manchin (D-West Virginia), the most consistently conservative Senate Democrat, “ told The Hill that he supports the changes to migration policy and asylum policy that Senate GOP colleagues are demanding.”
- A group of Democratic Party mayors, whose cities are hosting a growing number of asylum seekers, was in Washington on November 2. “The thinking among the mayors is that a sweet spot for the deal could be around adjusting asylum law in exchange for work authorization, all tied together with Ukraine and Israel funding,” reported Politico.
Sen. Murphy, “Republican Working Group” member Sen. Lankford, Sen. Michael Bennet (D-Colorado), and Sen. Kyrsten Sinema (I-Arizona) are “working through the weekend to forge a deal on asylum policy changes” that might be included in the supplemental budget bill, according to CBS News. Sinema voiced a view that while eligibility requirements for asylum seekers are valid, “the steps before migrants see a judge do need to be altered.”
Indeed, the item on which Democrats appear most open to negotiation is the Republican proposal for a tougher standard in asylum seekers’ initial credible fear interviews with asylum officers. That would lead to larger numbers of asylum seekers being deported before they leave custody.
It would also, however, risk thousands each year being sent back to likely death or serious harm because they were unable to assemble an ironclad case, within days of apprehension at the border, often while still in Customs and Border Protection (CBP) detention.
“One of the things the Republican colleagues have talked about in this hearing is adjustments to the asylum standard,” said Sen. Chris Murphy (D-Connecticut), chair of the Senate Appropriations Subcommittee on Homeland Security, at the November 8 hearing. “And I think that’s a legitimate conversation to have, but that will necessitate to the extent that there is more different work being done by USCIS [U.S. Citizenship and Immigration Services], some pretty significant new resources.”
Politico noted that changes to the credible fear standard alone are “unlikely” to “placate Republicans,” whose demands to curtail asylum go much farther.
In May, the Biden administration already placed a strong limit on the right to seek asylum, presumptively denying it to migrants who cross between ports of entry and fail to seek it in other countries through which they passed en route to the U.S. border. Advocates have questioned the legality of this “transit ban”; a federal district court judge struck it down in July, and the administration appealed the ruling. Officials defended their rule before the federal judiciary’s Ninth Circuit Court of Appeals in Pasadena, California on November 7.
Justice Department attorney Brian Boynton revealed that the Biden administration applied this rule to 57,700 asylum seekers between May 11, when it went into effect, and the end of September. In 12 percent of those cases, asylum seekers did manage to get past the ban by proving “exceptionally compelling circumstances.”
NGO reports examine Darién Gap migration
So far this year, about half a million people have migrated through the Darién Gap, a dangerous, roadless jungle region straddling Colombia and Panama. One quarter of these migrants have been women, and 22 percent have been children; of the children, about half are five years old or less.
Over the past week, two international non-governmental organizations issued major research reports about conditions along the Darién Gap route.
- On November 3, the International Crisis Group (ICG) published “ Bottleneck of the Americas: Crime and Migration in the Darién Gap.”
- On November 9, Human Rights Watch (HRW) published “ ‘This Hell Was My Only Option’: Abuses Against Migrants and Asylum Seekers Pushed to Cross the Darién Gap,” which the organization bills as the first in a series of reports.
(WOLA staff have just returned from a two-week visit to three of Colombia’s border zones that explains the recent hiatus in “Border Update” publications. We were in the Darién region in late October, and have posted photos to WOLA’s Instagram account and on the personal site of WOLA researcher Adam Isacson. Expect reports and other products from this visit in coming weeks.)
The ICG and HRW reports are based on several fieldwork visits. They reveal that the Darién is likely to be a major migration corridor for some time, and that few good options exist, at least in the short term, for changing that. Proposals center on easing the humanitarian emergency and addressing the reasons people are fleeing.
Among some common findings:
- An organized crime group known alternately as the Gulf Clan and the Gaitanistas exercises tight control of the Colombian portion of the migration route. This group, descended from the pro-government paramilitary militias that controlled northwestern Colombia during the 1990s and 2000s, is growing and enriching itself, in part by charging exorbitant fees to all migrants who pass through the zone. Those who do not pay do not get to travel. However, the criminal group protects from harm all migrants who pay.
- That protection fades on the Panamanian side of the route, where smaller, usually local criminal bands frequently attack migrants. A common form of attack is jungle ambushes by groups of about eight to fifteen armed men.
- Sexual violence is shockingly common, particularly on the Panamanian side. Doctors Without Borders (MSF), HRW reports, “assisted 328 people who reported sexual violence while crossing the Darién between April and December 2021; 232 in 2022; and 390 between January and October 2023. MSF considers the total number of victims is likely higher.”
- ICG and especially HRW found a strong correlation between Mexico—at strong U.S. suggestion—imposing visa requirements on air travelers from Venezuela and Ecuador, and subsequent increases in migrants from those countries passing through the Darién. For 2023, Venezuela and Ecuador have been the number one and number two nationalities of migrants making the Darién Gap journey, accounting for 75 percent of all migration in this region.
Both reports conclude that solving this humanitarian crisis will not be easy. “Stopping individual migrants, however many of them, will not stop migration,” notes the ICG report, “but a policy geared exclusively toward protecting them could backfire by driving flows ever higher.”
Both organizations call for greater U.S. and international attention to the root causes, like insecurity and poor governance, driving migration from Venezuela, Ecuador, and Haiti, the top three countries of origin of Darién migrants. Both call for expanded pathways to allow protection-seeking migrants to travel legally, thus avoiding the Darién route. Both call for greater willingness and assistance for integration of migrants into countries of refuge throughout the Americas. And both call for greater cooperation and coordination between countries, especially Colombia and Panama, which are scarcely coordinating today. Both reports call on Colombia and Panama to maintain a greater state presence in the virtually ungoverned Darién region, and for that presence to include more than just security forces.
The ICG report explores, but does not specifically endorse, proposals to create “a controlled migration corridor” through the Darién “by land or sea.” This would be “a secure, supervised overland route where migrants would have access to medical care, shelter, food and clean water.” ICG acknowledges that “the concept is more aspirational than practicable at present, due largely to worries on the part of affected governments that such a corridor would be a magnet for even more migrants.”
HRW calls on Mexico and Central American governments to “ensure that their visa requirements do not effectively prevent access to asylum and push people to resort to dangerous crossings including the Darién Gap.” The organization calls for a greater diplomatic effort to welcome migrants throughout the region, including a possible new regional agreement that builds on the Cartagena Declaration of 1984 and specific temporary protected status for people fleeing Venezuela and Haiti. HRW recommends more “dignified migration centers and other shelters” in the Darién region, and more work to prevent and investigate abuses committed against migrants, especially sexual violence.
In-transit migration developments elsewhere south of the U.S.-Mexico border
Once people emerge from the Darién Gap, Panama and Costa Rica facilitate their northward journey via buses, which migrants must pay to board. The New York Times reported from a new facility at Costa Rica’s border with Panama, where migrants who can pay the fare await buses that will whisk them to Nicaragua. Migrants who cannot pay the $30 per person bus fare, after already paying $60 per person to get from the Darién to Costa Rica, end up stranded in the Costa Rican “center,” in grim conditions.
This busing approach, the Times notes, “has raised alarms in the United States, which has called on its Latin American allies to deter people from making the treacherous journey north by encouraging them to apply for refugee status closer to their home countries.” Biden administration officials have voiced concerns to Costa Rica and Panama “behind closed doors.”
The Honduras-based publication ContraCorriente reported on the increasing number of charter planes—an average of 18 per day—now arriving in Nicaragua, often ferrying migrants from Cuba and Haiti. Nicaragua does not require visas of most international visitors; it eliminated the requirement for Cuban citizens in November 2021. Most of the time, Nicaraguan officials charge hefty entry fees ($150-200) to obtain a document granting a legal migratory status for a few days as migrants leave the country.
As a result, a growing number of people are avoiding the Darién route by flying to Nicaragua. On November 6 the assistant Secretary of State for Western Hemisphere Affairs, Brian Nichols, voiced concern “about reports of a dramatic increase in charter flights to Nicaragua that facilitate irregular migration from Cuba.”
On November 4, Mexico deported 105 Cuban citizens on a flight to Havana, and 112 more on a November 8 flight. Cuba’s Interior Ministry stated that 4,996 Cuban migrants have been returned to the island so far in 2023, a number that includes those whom U.S. authorities have interdicted at sea.
Emilio López of the University of Texas and the Autonomous University of Chihuahua told the Cuban independent media outlet El Toque that Cuban migrants in Mexico tend to have stronger social networks and are often aware of asylum opportunities in both the United States and Mexico.
In southern Mexico, several thousand migrants who have been stranded in the southern border-zone city of Tapachula, Chiapas began walking northward together on October 30. They followed the highway along Chiapas’s Pacific coast for about 25 miles to the town of Huixtla, where Mexican authorities maintain a checkpoint and migration center. Most remain there, camped along the highway and frequently blocking traffic.
The group, including many families, is demanding resolution to their migratory situation in Mexico, calling particularly for issuance of transit documents allowing them to continue their journey northward, something the U.S. government usually seeks to discourage.
A bit further north, a few thousand migrants, principally from Haiti, Venezuela, and African nations, arrived at once in towns in Oaxaca state. “At least 3,000 migrants of Haitian origin are refugees in the Migratory Mobility Center [a converted bus terminal] in Juchitán, Oaxaca, of a total of 6,000 migrants,” reported IstmoPress. “While waiting to collect or buy their tickets, they sleep on pieces of cardboard and in makeshift tents, and feed themselves with bread or fruit or with what they receive in aid.”
- Federal officials told Border Report that 686 people border-wide “died of falls, drowned in canals and in the Rio Grande or perished in Texas, New Mexico and Arizona deserts from Oct. 1, 2022, to Sept. 30, 2023.” That official death toll, which is probably not final, is fewer than the approximately 890 that the Department of Homeland Security (DHS) counted in fiscal 2022. Catholic leaders gathered in El Paso on November 4 to mourn the dead, among them 149 in El Paso and New Mexico in fiscal 2023.
- Leaders from Barbados, Canada, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Mexico, Peru, and Uruguay joined President Joe Biden at a November 3 “Americas Partnership for Economic Prosperity (APEP)” Summit in Washington. The U.S. government announced an effort with the Inter-American Development Bank (IDB) to boost financing for countries in the region that are hosting or integrating migrants.
- “Remittances sent from Ecuador to Mexico increased 282.98% in the first quarter of 2023,” the Guayaquil daily El Universo reported. “The money goes to expenses, payment to coyoteros, and rescue of kidnapped people at the border.”
- In a fourth special session of this year, Texas’s Republican-led state legislature is seeking to pass a law that would make it a state crime to cross the U.S.-Mexico border into Texas between ports of entry. Captured migrants would be sent back into Mexico, which would violate federal law if they were asylum seekers or citizens of countries other than Mexico.
- “Border residents say they were stunned by the stealth $229 million contract issued to Sullivan Land Services Company (SLSCO), a Galveston-based firm,” to build 17 miles of new border wall in Starr County, Texas, reported the Border Chronicle. The Texas Observer revealed details about the contract.
- Border Patrol agents remain blocked from removing razor-sharp concertina wire that Texas state authorities have strung along parts of the border, often blocking asylum seekers on U.S. soil. A Texas federal judge heard arguments on November 7 in a lawsuit from the state government seeking to stop Border Patrol from cutting the wire. Judge Alia Moses extended, through November 27, her October 30 restraining order temporarily upholding Texas’s position. Texas sued in late October to halt cutting off the wire, which has wounded hundreds of migrants. Agents are often forced to cut through Texas’s razor wire in order to take into custody people who are already on U.S. soil, on the banks of the Rio Grande, and at times in need of medical attention.
- Texas border cities had some of the lowest rates of violent crime among the state’s cities in 2022, pointed out Rep. Henry Cuéllar (D-Texas), a member of Congress who represents a border district. Cuéllar was citing FBI data.
- More than 100 people awaiting a chance to seek asylum in the United States have congregated at four encampments on the Mexican side of the San Ysidro port of entry between Tijuana and San Diego.
- “The Biden Department of Homeland Security (DHS) has removed a higher percentage of arrested border crossers in its first two years than the Trump DHS did over its last two years,” pointed out a Cato Institute analysis of data released by House Judiciary Republicans.
- Joseph Cuffari, a Trump appointee who as inspector-general of DHS should play a key role in holding border agents accountable for human rights and corruption, continues to have an embattled tenure. This week, a federal judge threw out a lawsuit Cuffari had filed against the Council of the Inspectors General on Integrity and Efficiency, a government body that oversees agencies’ inspectors-general. Cuffari claimed this “watchdog of watchdogs” was in effect harassing him by looking into allegations of mismanagement and misconduct. U.S. District Judge Rossie Alston disagreed.
- “The United States fails to meet the narrow goal of guaranteeing the rights and bodily well-being of migrant children, while also ensuring that these children remain without the tools to thrive, engage civically, or contribute politically,” wrote Tanvi Misra at the Baffler. “In other words, it is increasing the likelihood that these youth are folded into an already immense underclass of criminalized, exploited people without status, safety nets, or structural support.”