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.
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Border migrant encounters appear to fall in September, capping off a fiscal year of very high levels
U.S. Customs and Border Protection (CBP) has not yet released its count of undocumented migrants encountered at the U.S.-Mexico border in September—and thus in all of fiscal year 2021, which ended September 30. Nonetheless, the agency shared some numbers with the Washington Post’s Nick Miroff, and later with NBC News, showing what could be the largest number of migrant encounters ever recorded in a single year.
During fiscal 2021, CBP encountered 1.7 million migrants, 1.66 million of them between the land ports of entry (Border Patrol) and about 40,000 at the ports of entry (CBP’s Office of Field Operations). The 1.66 million exceeds the prior record of 1.64 million apprehensions Border Patrol reported in 2000, and 1.62 million in 1986.
The 2021 figure includes a lot of double and triple-counting. Due to the controversial “Title 42” pandemic policy, under which CBP rapidly expels most Mexican, Salvadoran, Guatemalan, and Honduran migrants into Mexico regardless of protection needs, 2021 saw a large number of repeat crossers. For many migrants, Title 42 means spending an hour or two in Border Patrol custody, then being delivered back into Mexico—a process that has incentivized repeat attempts. In recent months, the Post recalls, “recidivist” migrants have made up more than 25 percent of those CBP has encountered.
As a result, the actual number of people apprehended in 2021 is assuredly lower than 1.7 million. At the end of August, when CBP reported 1.54 million “encounters” border-wide, the agency noted that this represented “1,002,722 unique individuals”—in other words, about one and a half encounters per person. The agency doesn’t report (or didn’t keep) recidivism data from before 2005, but repeat crossings were also probably quite frequent during the previous record-breaking years (2000 and 1986), a time of few border barriers, heavy use of voluntary returns, and a mostly adult Mexican migrant population.
NBC’s Julia Ainsley reported that CBP encountered 192,316 migrants at the U.S.-Mexico border during September. If that figure incorporates both Border Patrol and ports of entry, it would be an 8 percent reduction from August and a 10 percent reduction from July. Data about arrivals of unaccompanied children at the border also indicate a notable decline since the summer.
Of the 1.66 million Border Patrol encounters in fiscal 2021, Miroff reports, “more than 608,000” were from Mexico, 309,000 from Honduras (a country whose entire population is just below 10 million), 279,000 from Guatemala, 96,000 from El Salvador, and 367,000 from other countries.
Of the nine sectors into which Border Patrol divides the U.S.-Mexico border, the most migrants were encountered in southeast Texas’s Rio Grande Valley (549,000), which has been in first place every year since 2013. In second place, for the first time ever, is south-central Texas’s rural Del Rio sector (259,000), which was sixth in 2019 and 2020. Del Rio is where about 15,000 mostly Haitian migrants arrived en masse in mid-September.
Reports point to a culture of inhumane behavior at U.S. border agencies
This week saw a few NGO and media reports pointing to an everyday pattern of cruelty toward migrants among CBP and Border Patrol personnel, ranging from petty insults to acts of violence.
On October 21 Human Rights Watch published findings from documents obtained via a years-long Freedom of Information Act (FOIA) lawsuit. “They Treat You Like You Are Worthless” is based on over 160 accounts of “misconduct and abuse of asylum applicants at the hands of officers within several DHS [Department of Homeland Security] components, particularly CBP officers and Border Patrol agents.” These were compiled by asylum officers from U.S. Citizenship and Immigration Services (USCIS, another DHS component) during interviews with protection-seeing migrants.
Allegations of agents’ and officers’ abuse include “assault, sexual abuse, due process violations, denial of medical care, harsh detention conditions, and dehumanizing treatment at the border.” Among many alarming examples the report brings to light are these in its opening summary:
In 2017, a US Border Patrol agent kneed a woman in the lower pelvis, leaving bruises and pain days later, according to her statement to a government official screening her asylum claim. In a separate incident that year, a Border Patrol agent or Customs and Border Protection (CBP) officer forced a girl to undress and then inappropriately touched her. In 2018, a CBP officer hit another asylum applicant so hard he was knocked unconscious and suffered brain swelling. That same year, an officer wearing a green uniform, consistent with those of the Border Patrol, asked an asylum applicant to give him oral sex in exchange for being released from custody. Another asylum applicant was bitten in the testicle by a Border Patrol service dog and denied medical treatment for about one month and ultimately had to have his testicle surgically removed. In 2019, CBP officials appeared to withhold food from a man in a freezing cold holding facility until he agreed to sign a paper that he did not understand.
The FOIA revelations, Human Rights Watch concludes, show a deeply embedded culture in CBP and Border Patrol that views migrants as adversaries deserving of punishment or suffering, and that assumes its personnel will not be held accountable.
A 2019 report from the DHS Office of Inspector General found that 47 percent of CBP employees surveyed did not believe officials at all levels were held accountable for their conduct. In a 2018 affidavit, CBP’s former deputy assistant commissioner for internal affairs, James Wong, described CBP leadership as “reluctant to hold agents and others within the agency accountable for their actions, including if they were involved in criminal activity.” …The FOIA documents paint a picture of DHS as an agency that appears to have normalized shocking abuses at the US border.
“The documents make clear that reports of grievous CBP abuses—physical and sexual assaults, abusive detention conditions and violations of due process—are an open secret within DHS,” Clara Long, the Human Rights Watch report’s principal author, told the New York Times.
The report calls for fundamental changes in migrant reception and processing practices, as well as for far greater oversight and accountability of these agencies, both within DHS and by other federal investigative bodies, including Congress. A DHS spokeswoman told the Times that Secretary Alejandro Mayorkas, who took over in February, has ordered internal reviews of policies and training, and that the Department has beefed up its Office for Civil Rights and Civil Liberties (CRCL), which has a lackluster record of following up on complaints.
Also on October 21, Human Rights First published the latest in a series of very grim updates about the Title 42 policy and its impact on the rights and well-being of asylum seekers. “The suffering of families, adults, and children subjected to this policy continues to mount, with at least 7,647 kidnappings and other attacks on people blocked or expelled under Title 42 since President Biden took office,” it reads.
Like the Human Rights Watch document, the Human Rights First report, “Illegal and Inhumane,” details numerous recent examples of cruel and callous treatment of asylum seekers at the hands of CBP and Border Patrol. Among them:
- “In October 2021 DHS agents repeatedly told an asylum-seeking Honduran family to ‘shut up’ and refused to answer their questions as they transferred the family by plane from McAllen, Texas, where they had crossed the border to seek asylum, to Arizona for expulsion into Nogales, Mexico. According to Kino Border Initiative, an agent attempted to seize the family’s documents related to their asylum claim.”
- “A Haitian mother expelled in late September 2021 begged U.S. officers to remove her handcuffs to enable her to comfort her crying young daughter on the plane ride, according to Blaine Bookey from UC Hastings Center for Gender and Refugee Studies.”
- “Belone Mpembele, an asylum seeker from Angola, was expelled to Haiti by the United States… in its rush to expel Haitians in September 2021.”
- “DHS continues to carry out some Title 42 expulsions to dangerous Mexican border cities in the middle of the night, when businesses are closed and humanitarian services are unavailable, increasing the risk that expelled individuals will be attacked. For example, Border Patrol agents expelled more than 20 people through the DeConcini port of entry to Nogales, Mexico around 2:00 a.m. in late August 2021, leaving them stranded.”
- “In August 2021, DHS subjected three Nicaraguan political dissidents to a lateral expulsion flight after they sought protection near McAllen, Texas. DHS officers verbally abused them, threatening to release dogs to attack them. The officers woke the men at 1:00 am, handcuffed them, and forced them to stand for more than two hours before the expulsion flight. The officers lied to the men telling them that they would be sent to California and permitted to pursue their asylum cases, but instead expelled them to Tijuana.”
Numerous migrants’ rights and advocacy groups submitted comments this week on proposed Justice Department and DHS asylum regulations (as did former Trump advisor Stephen Miller’s “America First Legal” group). A comment submitted by the American Civil Liberties Union (ACLU) of Texas calls for clearly removing CBP from the asylum process due to its adversarial posture toward asylum seekers.
The ACLU document notes that “CBP personnel regularly fail to ask required questions” of apprehended migrants regarding whether they fear persecution and return to their home country, “even in the presence of independent observers.” The comment cites several examples of CBP personnel falsely recording in their paperwork that asylum seekers did not express fear of return. The agency’s jail-like holding facilities, it continues, are no place to expect people to prepare for a high-stakes credible fear interview to evaluate their pleas for protection.
Further troubling information about CBP and Border Patrol treatment of migrants comes from a leaked January 2021 CRCL document obtained by BuzzFeed’s Hamed Aleaziz. The report documents agents’ and officers’ zeal to send asylum-seeking migrants back into treacherous Mexican border cities to await their U.S. hearings, under the Trump administration’s controversial “Remain in Mexico” policy (also known as “Migrant Protection Protocols” or MPP, and discussed further below), regardless of their disabilities or medical conditions.
“The report offers a rare window into the behind-the-scenes dysfunction and confusion surrounding the Migration Protection Protocols,” Aleaziz notes. It documents a dozen cases in which U.S. personnel found that migrants were “amenable” to being forced to remain in Mexico despite “circumstances such as cognitive disability, glaucoma, epilepsy, cervical metaplasia, uterine cancer, heart conditions, ‘crippled’ legs, chicken pox, AIDS, and diabetes.” BuzzFeed continues:
In one case, investigators looked into an allegation that a 6-year-old girl from Honduras was returned to Mexico despite having advanced cerebral palsy. The CBP records the investigators reviewed indicated that she, her parents, and brother were placed into MPP on May 20, 2019. A DHS form the investigators reviewed indicated “CRIPPLED LEG, LEFT” and “CRIPPLED LEG, RIGHT” under a section reserved for “scars, marks, and tattoos.”
There were no other records relating to her health.
In 2019 CBP sent back into Mexico an 11-year-old boy who “had severe epilepsy, with convulsions leading to loss of memory and vomiting.” Personnel also sent into Mexico “a 4-year-old child in MPP who had been found to have chicken pox and his young sister who had been sexually assaulted.” Other asylum seekers relegated to Mexican border towns included “a 34-year-old woman who had a pituitary tumor that pressed against her brain, a 13-year-old child with only one functioning lung, and an 8-year-old boy who had a urethral malformation that required surgery.”
The CRCL report also confirmed that it is standard Border Patrol practice to separate families who were forced to remain in Mexico: “In emails provided to CRCL by CBP, CBP personnel state that it is USBP procedure to separate one parent from the rest of the family and only maintain family unity for the other parent and children.”
“I once asked CBP why a 13-yr-old boy who lost his left leg in Mexico was placed in MPP,” tweeted BuzzFeed reporter Adolfo Flores, “despite the agency’s guiding principals [sic] saying immigrants with ‘known physical/mental health issues’ should not be placed in the program.” CBP’s response read, “Creating a categorical exclusion for a specific medical condition could have a chilling effect on amenability determinations for MPP. Amputation in and of itself in an otherwise healthy individual is not considered a medical condition that would inhibit enrollment in MPP.”
Humanitarian and human rights groups protest Remain in Mexico restart
As detailed in last week’s update, the Biden administration continues to move toward complying with a Texas judge’s order to restart the Trump administration’s Remain in Mexico program, which President Biden had halted on Inauguration Day and formally terminated on June 1.
Although Mexico has not yet agreed to receive non-Mexican asylum seekers under a renewed MPP, “tent courts” are once again under construction next to ports of entry in Laredo and Brownsville, Texas. DHS expects to have those facilities ready by mid-November, at a cost of $14.1 million. There, asylum-seeking migrants forced to Remain in Mexico will once again be brought to appear before immigration judges—most of them based in San Antonio—via videoconference.
“The court facilities will be located on the same spots where they previously were built in 2019 under then-President Donald Trump, and will be the go-to location for all asylum hearings once MPP is restarted,” Rep. Henry Cuellar (D-Texas), who represents Laredo, told Border Report. “They’re going to set it up the way it was prior to this administration. They’re going to do the same thing in Brownsville. It’s the same contractor from New York,” Cuellar said.
Amarillo, Texas District Court Judge Matthew Kacsmaryk is requiring the Biden administration to file updates on its “good-faith efforts” to restart a program it opposes. The latest filing, from October 15, details some of the Mexican government’s objections to a restarted program. “The GOM [government of Mexico] made clear that enhancing opportunities for MPP enrollees to secure adequate access to counsel is a critical issue that needs to be addressed before it could decide to accept MPP enrollees into Mexico,” that document reads.
“Adequate access to counsel” would require the cooperation of pro-bono attorneys and other service providers, many of whom sought to represent vulnerable asylum seekers in Mexican border towns, often at great personal risk, during the Trump administration. Livid at the prospect of the revival of a program that puts asylum seekers in danger and inherently interferes with due process, and angry at the Biden administration for not taking steps to challenge Judge Kacsmaryk’s order, these attorneys and service providers are refusing to participate in the program—in the strongest possible terms.
On October 16, border-area attorneys and advocates “walked out” of a virtual off-the-record “stakeholder meeting” with Biden administration officials, inserting words of protest into their Zoom backgrounds and exiting after about eight minutes.
“We can no longer come into these conversations in good conscience when the Biden administration continues to perpetuate illegal and inhumane Trump-era immigration policies such as Title 42, and now MPP,” read a prepared statement from the groups in attendance. “Advocates engaged with many of you during the transition and the beginning of the administration. We even provided the administration with a road map that included solutions on how to restore the asylum system. You continue to play politics with human lives. Your policies are sending people to their deaths.”
“We have to proceed in good faith or be held in contempt of court, and as a government, we cannot do that,” Esther Olavarria of the White House’s Domestic Policy Council told the advocates.
Groups have been calling on the Biden administration to issue a new memo “re-terminating” Remain in Mexico, noting that the federal courts’ rulings found that the original June 1 memo insufficiently explained the reasons for termination. A new memo, advocates say, should make clear the administration’s view that MPP violated U.S. immigration law and international human rights commitments, and thus cannot be restarted.
The administration is in the process of preparing a new “re-termination” memo. Advocates have been critical of the lack of urgency with which they are producing the memo, but as an official told reporters in an October 14 call, their view is that “the memo can’t go into effect until the injunction in the federal cases is lifted,” which Judge Kacsmaryk, a Trump appointee, is unlikely to do. Advocates, too, are unclear about whether a new “re-termination” memo would be enough to halt the program without violating the judicial order.
On October 19, 73 legal service providers sent a letter to President Biden and other top officials reinforcing their refusal to participate in or enable Remain in Mexico.
“[T]here is no way to make this program safe, humane, or lawful,” it reads.
No measure of involvement from civil societies will mitigate the harms of this horrific, racist, and unlawful program. Nor is it just for this administration to continue to force U.S. lawyers and humanitarian staff to risk their safety due to the failure of this administration to take swift action to uphold U.S. refugee laws and treaties. We refuse to be complicit in a program that facilitates the rape, torture, death, and family separations of people seeking protection by committing to provide legal services.
Representing people returned under MPP or expelled to Mexico under the illegal Title 42 policy has also endangered attorneys and humanitarian groups, including staff of some of the undersigned organizations. In fact, during the two years it was operated under the Trump administration, U.S. based attorneys were threatened with kidnapping and violence in connection with their representation of people in MPP.
“We stand ready to offer legal services to asylum seekers, were your administration to follow U.S. and international law,” the letter concludes. “But there is no protection in the Migrant Protection Protocols.”
This position makes it unlikely that Biden administration negotiators will be able to satisfy the Mexican government’s concerns about access to counsel for migrants subjected to a renewed Remain in Mexico program. Meanwhile, though, construction crews continue to build the “tent courts” in Brownsville and Laredo.
Senate publicizes its 2022 Homeland Security appropriations bill
On October 18 the Senate Appropriations Committee revealed its draft text of nine bills necessary to fund the U.S. government in 2022, including the Department of Homeland Security appropriation. The Committee published the text, the explanatory statement, and a summary of its version of the 2022 Homeland Security Appropriations Act.
The House of Representatives’ Appropriations Committee approved its version of the 2022 Homeland Security bill, along with an explanatory statement, on July 1. It has not yet passed the full House. Our July 9 update provided an overview of that version of the bill.
Some highlights of the Senate bill:
- Rescinds $1,893,662,867 in prior years’ appropriations for border wall construction. The House bill would rescind $2.06 billion.
- Devotes that rescinded border-wall money to:
- CBP salaries and retirement funds ($416 million);
- New migrant processing facilities ($130 million);
- New border security technologies ($144 million, compared to $132 million in the House bill), including body-worn cameras;
- Detection and inspection equipment for ports of entry ($68 million);
- A transfer to the Interior Department to mitigate the environmental harms done by border wall construction ($50 million, compared to $100 million in the House bill);
- Training and childcare services for CBP personnel ($41 million);
- IT modernization, especially for migrant processing ($40 million);
- Child welfare professionals for CBP facilities ($15 million);
- Efforts to identify cargo produced by forced labor ($10 million); and
- “a range of other investments including life-saving search and rescue capabilities, medical support at CBP facilities, and modernizing land ports of entry.”
- Provides $14.5 billion to fund CBP. That’s $80 million below the Biden administration’s request, and $501 million below the 2021 level. (The House bill would provide even less: $14.11 billion.)
- Provides $7.88 billion for Immigration and Customs Enforcement (ICE), $58 million below the Biden administration’s request and $40 million below the 2021 level. (The House bill would provide slightly more: $7.97 billion.) This includes:
- $3.93 billion for ICE “enforcement, detention, and removal operations, including transportation of unaccompanied children,” about $194 million below 2021 levels. (The House bill provides $3.79 billion.)
- $2.63 billion for ICE custody operations, $143 million below the Biden administration’s request and $202 million below the 2021 level. (The House bill provides $2.46 billion.) “The bill cuts funding for an average daily population of detention beds by 5,500,” reads the Senate appropriators’ summary of the bill.
- $2.23 billion for ICE’s investigative arm, Homeland Security Investigations (HSI), $59 million above the Biden administration’s request and $88 million above the 2021 level. (The House bill provides $2.26 billion.)
- Repurposing unspent funds previously appropriated to ICE, directing them instead to the Biden administration’s Family Reunification Task Force “to help support the reunification of children who were traumatically separated from their parents and legal guardians at the southern border during the last Administration.”
The Senate bill will probably not go through the evenly divided (15 Democrats, 15 Republicans) Appropriations Committee, where measures like the border wall funding rescission could come under attack. House and Senate leaderships will probably reconcile differences and roll their versions of the bill into an “omnibus” appropriation, combining bills funding much of the federal government. This should happen before the next deadline for approving a 2022 budget (December 3, according to the most recent “continuing resolution” that is currently keeping the government funded at 2021 levels).
- A New York Times scoop finds that during the spring of 2020, Donald Trump’s White House advisor Stephen Miller sought to send 250,000 troops—more than half of the active-duty U.S. Army—to the border with Mexico. Trump even “pressed his top aides to send forces into Mexico itself to hunt drug cartels.” The proposal was relayed directly from the Department of Homeland Security to the U.S. Northern Command, bypassing the office of Defense Secretary Mark Esper who, “alarmed,” quashed it.
- According to ABC News, CBP reported “over 470 deaths” of migrants on U.S. soil during fiscal 2021. This is a very large number: the agency’s records since 1998 show a high of 492 in 2005 followed by 471 in 2012, and its count is much lower than those of local organizations dealing with migrant deaths. A likely explanation for the increase in deaths is more migrants traveling in hazardous areas in an effort to evade Title 42 expulsion. The Guardian profiles Lenilda dos Santos, a nurse from Brazil’s impoverished north who perished of dehydration in the desert near Deming, New Mexico in September. It was her second attempt to reach the United States after being detained and deported in April.
- At his confirmation hearing, the Biden administration’s nominee for CBP commissioner, Tucson Police Chief Chris Magnus, voiced support for maintaining Title 42 and for some additional border barrier construction, citing “some gaps where that could make sense.” On questions of CBP’s troubled organizational culture, he said, “I have a long history of transparency and sharing things with the public, whatever the outcome may be, because I think this is how you sustain and build trust.” Magnus refused to go along with Republican senators’ efforts to get him to call the situation at the border a “crisis.” He is expected to be confirmed with few or no Republican senators’ votes.
- The attorneys-general of Texas and Missouri, who already sued (so far successfully) to reinstate the Remain in Mexico program, have filed suit in federal court again, this time seeking a preliminary injunction to force the Biden administration to spend appropriated money to build Donald Trump’s planned border wall. This suit would presumably be rendered irrelevant if Congress rescinds past-year border wall funds, as discussed above.
- NBC News and EFE reported that mostly Haitian and Central American migrants stranded in Mexico’s southern border-zone city of Tapachula, Chiapas are holding vigils and planning a “caravan” across Mexico, which would leave on Saturday the 23rd. Activists working with the migrants state that the caravan will head to Mexico City, seeking legal permission for migrants to move about within Mexican territory, rather than being confined to Tapachula. Mexico’s National Human Rights Commission (CNDH) issued protection measures requesting state and federal authorities to respect the migrants’ rights during their journey. This news also provoked concerns over a possible surge in migrant arrivals at the U.S. border. No migrant caravan has succeeded in getting beyond Chiapas since late 2018, however, as Mexican security forces have stopped or dispersed them, at times brutally. There is little reason to believe that this caravan’s outcome would be much different. The caravan announcement is one of a series of actions by migrants seeking for COMAR, Mexico’s refugee agency, to speed the resolution of their asylum requests.
- At TruthOut, Sandra Cuffe reports from El Ceibo, the tiny border town in Petén, Guatemala that has received more than 14,000 expelled Central American migrants and asylum seekers—many or most of them flown from the United States to southern Mexico—in the past two months.
- In Corinto, Honduras, just over the border from Guatemala, Honduras’s Criterio and Contra Corriente relate tragic stories of migrants who made it all the way to the U.S. border only to be expelled to Mexico, then expelled by Mexico to Corinto. Often, as happened with 11 busloads of people on October 14, the expelled migrants arrive in Corinto during pre-dawn hours when no officials are there to receive them. Most did not realize, and weren’t told, that they were being sent back to the country they had fled. Mexico has returned 8,000 Hondurans to Corinto in the past month (some of whom were apprehended in Mexico, not the United States).
- Mexico’s migration agency (INM)—whose monthly record of migrant apprehensions, set in June 2019, is 31,396, or about 1,000/day—reported “identifying” 1,957 undocumented migrants in a single day on October 15.
- NPR reports on how social media and smartphones have changed the face of northbound migration. “In Facebook, they mostly use groups, finding information about the route, about if someone died or sharing U.S. news, like if Biden said something about the border, about if it’s open or if it’s closed or if they’re taking in families,” says reporter Luis Chaparro.
- Panama’s foreign minister tells Spain’s El País that 105,000 people have passed through her country so far this year, most of them through the hazardous jungles of the Darién Gap, a region once thought to be impenetrable. By the end of the year, she adds, “we believe we’re going to exceed 150,000, which is a really troubling number.” That’s up from 20,000 in 2019 and 8,000 in 2020.
- Colombia’s migration authority reports encountering 90,610 undocumented migrants passing through its territory so far this year, up from 3,922 in the pandemic border-closures year of 2020.
- A data-heavy update from the International Organization for Migration finds that 10,831 people were expelled or repatriated back to Haiti between September 19 and October 19. The United States expelled 7,915, followed by Cuba (1,194), the Bahamas (1,031), Mexico (248) and Coast Guards’ maritime interdictions (406).