Adam Isacson
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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Biden administration, complying with court order, will soon restart “Remain in Mexico”
Rep. Henry Cuellar (D), who represents Laredo, Texas, said October 13 that the Biden administration would roll out a revived “Remain in Mexico” program, as ordered by a Texas judge, “within the next month or so.” According to CQ/RollCall’s Suzanne Monyak, Cuellar said “That means that you’ll see the tents in the Laredo area be expanded.” By “tents,” the congressman was referring to temporary facilities by the port of entry where, during the Trump administration, asylum seekers forced to remain in Mexico attended their immigration hearings via videoconference.
The term “Remain in Mexico” refers to the so-called “Migrant Protection Protocols (MPP),” a program begun by the Trump administration in late 2018 and early 2019. It sought to deter and discourage would-be asylum seekers by forcing more than 71,000 of them to await their U.S. hearing dates on Mexican soil, where many were subjected to kidnapping, assault, and other crimes. Candidate Joe Biden criticized this program, and his administration quickly terminated it. On August 13, though, Amarillo, Texas District Court Judge Matthew Kacsmaryk (a Trump appointee), responding to a suit brought by the Republican attorneys-general of Texas and Missouri, ordered the Biden administration to restart Remain in Mexico. The Supreme Court upheld this order while lower-court appeals continue.
At midnight on October 15, the Biden administration submitted its latest monthly filing, required by Judge Kacsmaryk, on the steps it has taken to restart the controversial program. The document reports that the Department of Homeland Security (DHS) has been “recreating the administrative, personnel, physical, and policy framework necessary to operate MPP and are prepared to re-implement MPP in mid-November, subject to Mexico’s decision to accept those that the U.S. seeks to return.” It adds that “multiple discussions” have taken place with Mexican authorities, who would have to receive the asylum-seekers, about a re-start. Further, the filing notes that construction of Remain in Mexico hearing facilities has begun in Laredo and Brownsville, Texas, as Rep. Cuellar had partially indicated, at a cost of $14.1 million.
Mexico has not yet agreed to take back migrants subject to the Remain in Mexico program. It has not refused, either. A brief October 15 statement from Mexico’s Foreign Ministry expresses “concerns” about the program and about how the United States has implemented Title 42 pandemic-related migrant expulsions (discussed below), but notes that “Mexico will continue the dialogue.”
If the Biden administration finds itself implementing both Remain in Mexico and Title 42 at the same time, a possible result might be a two-tier system in which Mexico’s border towns receive two classes of non-Mexican migrants. The first class would be citizens of Mexico, El Salvador, Guatemala, and Honduras, who might be expelled under the public health authority without even a chance to seek asylum. The second would be Spanish or Portuguese-speaking residents of the “other” countries, many of whom have been arriving in greater numbers lately, as discussed in a section below: Brazilians, Colombians, Cubans, Ecuadorians, Nicaraguans, and Venezuelans. Right now, Mexico does not accept citizens of these countries as Title 42 expulsions—but under a revived “Remain in Mexico” program, Mexico might receive them as people with pending asylum cases. Those from Mexico and the northern triangle would not have pending asylum cases due to Title 42.
U.S. asylum advocates have issued scathing responses, arguing that the Biden administration has had other options to keep from complying with the court order to re-start Remain in Mexico, such as more swiftly issuing a new memo to “re-terminate” the program with clearer wording about its decisionmaking process.
- “Trump 2.0 policies at the border are a recipe for continued cruelty, disorder, and violations of refugee law,” Eleanor Acer of Human Rights First told The Hill. “The Biden administration must honor its promise to terminate this horrific program.”
- “The Biden administration has had nearly two months to issue a new memo that addresses the district court’s concerns and formally terminate the MPP program for good,” said Jorge Loweree of the American Immigration Council. “The fact that it has not done so and is instead moving forward with plans to restart the program in November is a betrayal of the president’s campaign promises.”
- “There is no humane way to implement a program that was intended by [Trump advisor] Stephen Miller as a way to torture asylum seekers as deterrence model after the national outcry to family separation,” tweeted advocate Alida García, who spent a short stint this year as a White House senior advisor for migration.
Official border crossings to reopen to vaccinated travelers, but “Title 42” persists
DHS Secretary Alejandro Mayorkas announced on October 12 that next month, after 19 months of pandemic-related closures, the United States’ land borders will once again open to documented foreign travelers coming for “non-essential” reasons—as long as they have proof of COVID-19 vaccination. Starting in early November, tourists or people visiting family members will once again be able to enter the United States from Mexico and Canada.
Those who enter will need to present paper or digital proof of having received a full dose of a vaccine approved for emergency use by the World Health Organization. Unlike those who arrive by air, those entering by land will not have to provide proof of a recent negative COVID-19 test.
The pandemic travel restrictions had reduced documented border crossings significantly. 92 million people or cargo vehicles crossed into the United States from Mexico during the first 6 months of 2021, a one-third reduction from 136 million in the first 6 months of 2019.
As it ends pandemic restrictions on documented border crossers, DHS is keeping in place the so-called “Title 42” policy of swiftly expelling undocumented border crossers, including people seeking asylum. A Biden administration official told CBS News that “the policy considerations are different because migrants are generally held in Border Patrol facilities where social distancing can’t be enforced.”
Between February and August 2021, the Biden administration’s DHS expelled undocumented migrants 704,019 times at the U.S.-Mexico border. 92,676 of them were traveling as families (parents and children). Mexicans and many citizens of Central America’s “northern triangle” countries were pushed back across the border into Mexico. Others, like nearly 8,000 Haitians since September 19, have been flown back to their countries, often in shackles or occasionally worse.
New data obtained by CBS News show that while DHS has carried out more than 1,163,582 expulsions since the Trump administration imposed Title 42 in March 2020, the agency has permitted only 3,217 asylum seekers to petition for protection in the United States, using the higher evidentiary standards of the UN Convention Against Torture. Of these, only 8 percent (272) passed their interviews.
“It’s a heartbreaking thing to see” the expulsions of “individuals who are seeking a better life,” Mayorkas told a conference in Qatar this week. But he insisted that “the Title 42 authority is a public health authority. And it is not an immigration policy. It is not an immigration policy that we in this administration would embrace. But we view it as a public health imperative as the Centers for Disease Control has so ordered.”
Public health experts dispute that. “It’s clearly something that is politically expedient and I think that’s dangerous,” Michele Heisler, the medical director at Physicians for Human Rights, told the American Prospect. Added Paul Spiegel of the Johns Hopkins Center for Humanitarian Health, “This is not a public-health issue, it’s a lack of immigration policy and I think we know that, and we can’t let them keep on.”
Harold Hongju Koh, a senior adviser on the State Department’s legal team, shared this assessment. A former dean of Yale University’s Law School and former assistant secretary of state for Democracy, Human Rights, and Labor, Koh resigned his post on October 4, two days after issuing a memo calling the Title 42 policy “illegal and inhumane,” concluding, “It simply is not worthy of this Administration that I so strongly support.”
Yale Law School’s Lowenstein Project, together with 13 non-governmental organizations, submitted an emergency petition to the OAS Inter-American Commission on Human Rights (IACHR) seeking precautionary protection measures for 31 asylum seekers subject to Title 42. “These expulsions,” it reads, “mark persons returned to Mexico as migrants trapped in Mexico, rendering them particularly vulnerable to this rampant violence, including kidnapping, sexual assault, extortion, and other forms of abuse at the hands of organized criminal groups and corrupt authorities.” Lee Gelernt, the ACLU attorney leading one of the main legal challenges to Title 42 in U.S. federal court, noted in the American Prospect that “evidence the organization submitted in trial court indicated that 20 percent to 40 percent of families [expelled under Title 42] are kidnapped by cartels.”
Aftermath of the Biden administration’s mass expulsion of Haitians
As covered at length in our September 27 update, for several days in mid-September a remote sector of the U.S.-Mexico border in Del Rio, Texas saw the sudden arrival of nearly 15,000 mostly Haitian migrants, nearly all of them seeking to turn themselves in to U.S. authorities and request asylum. The Biden administration dealt with the influx by applying Title 42, expelling most of those who did not return to Mexico.
Immigration and Customs Enforcement (ICE) paid GEO Group, a controversial private prison and immigrant detention center operator, over $15 million to operate a swift tempo of flights expelling migrants back to Port-au-Prince and Cap Haïtien, Haiti. Most of those expelled via air had not lived in Haiti in a long time: they had fled to South America in the years after a devastating 2010 earthquake, living and working in Brazil, Chile, and elsewhere until the pandemic caused employment to dry up. They then braved the dangers of the multi-country journey northward—including Panama’s treacherous Darién Gap jungles—only to be shackled, placed on aircraft, and returned without any chance to ask for protection in the United States.
The expulsion flights began on September 19. Since then—according to Tom Cartwright, who monitors flights for Witness at the Border—there have been 74 flights expelling about 7,900 people to Haiti. The pace appears to be slowing as the number of Haitians in custody has no doubt declined. By comparison, Cartwright points out, the United States repatriated just 5,659 Haitians over the 40 months between January 2018 and April 2021. Counting people sent to Haiti from Mexico, Cuba, the Bahamas, and intercepted at sea, the International Organization for Migration counts 10,218 expulsions and returns since September 19.
It remains unclear how such a large number of Haitians made it all the way across Mexico virtually undetected in mid-September, just weeks after Mexican security and immigration forces harshly blocked four mass attempts to leave the southern state of Chiapas. Alfredo Corchado of the Dallas Morning News looked into it and found “a well-organized effort by human smuggling organizations facilitated through social media, and by Mexican authorities who either looked the other way or were simply overwhelmed.” Ruben Figueroa of the Movimiento Migrante Mesoamericano told Corchado of Haitians suddenly being allowed to board vehicles in the southern border-zone city of Tapachula, Chiapas, where Mexican forces had earlier been confining them. “This just doesn’t happen without the complicity of government authorities,” Figueroa said.
Tens of thousands of migrants from Haiti and other countries remain in Tapachula. There since late September, Mexico’s overwhelmed refugee agency (COMAR) has been attempting to process roughly 2,000 asylum seekers per day at the city’s soccer stadium.
Further south, the number of mostly Haitian refugees waiting in Colombia’s Caribbean coast town of Necoclí to board ferries to Panama’s dangerous Darién Gap region has risen to 22,000, up from the 17,000 to 19,000 noted in our October 4 update. Colombian migration authorities report at least 82,000 arrivals in Necoclí since January. Panama’s National Migration Service counted 88,514 emerging through the Darién as of late September, according to Reuters. Of those, 19,000 were minors, perhaps half of them under the age of 5, according to UNICEF.
Journalists continue to document the extreme dangers of the 60-mile pedestrian journey through the Darién, which was once regarded as nearly impenetrable. NPR’s John Otis accompanied a lone Cuban migrant for the start of the trip, before he crossed into Panama, in an audio report posted October 11.
In Colombia, where Secretary of State Antony Blinken is to visit next week for a “high level dialogue,” President Iván Duque said he plans to ask the Biden administration to send messages to Haitian migrants that would “minimize expectations” of being granted protection in the United States.
More scrutiny of migrants from beyond Mexico and the Northern Triangle
In August 2021, 29 percent of migrants U.S. authorities encountered at the U.S.-Mexico border were from countries other than Mexico, El Salvador, Guatemala, or Honduras. That, to the best of our knowledge, is the first time this has happened before.
The Haitians discussed above are part of this population, but so are migrants from South America who have been flying into Mexico—which since 2018 has not required visas for several South American countries—then traveling to the U.S. border, crossing, and requesting asylum. During the first 11 months of fiscal 2021 (October-August), CBP reports encountering 46,410 migrants from Brazil, 88,786 from Ecuador, and 37,859 from Venezuela. In most cases, U.S. authorities do not expel citizens of these countries under Title 42: Mexico has not agreed to take them, and long flights would be expensive. A Wall Street Journal article portrayed these new arrivals as “middle-class migrants.” Reporter Alicia Caldwell spoke to a dozen Venezuelans who arrived together near Yuma, who said that their entire journey took about two days.
Reuters reported on Brazilian authorities’ June arrest of a businessman accused of charging would-be migrants nearly $20,000 each to be smuggled into the United States via Mexico. “To pull it off, [Chelbe] Moraes has constructed an international network that includes corrupt cops and officials as well as U.S-based family members,” allegedly coaching clients to pose as tourists in Mexico,” the report reads.
U.S. Sen. Lindsey Graham (R-South Carolina) raised eyebrows by telling Fox News that, on a recent trip to Yuma, he had seen Brazilian migrants “headed for Connecticut wearing designer clothes and Gucci bags.” Attempting to clarify his comments to the Washington Post, Graham said, “Usually when you go to the border, you see people who are dressed really haggardly and who look like they’ve been through hell. This time at Yuma, there were dozens that looked like they were checking into a hotel — and smartly dressed.”
At the United States’s behest, Mexico is now tightening visa requirements for citizens of Brazil and Ecuador. Guatemala, too, has begun requiring visas of Ecuadorians.
Links
- At ProPublica, Dara Lind reports on a new DHS Inspector-General report about a CBP intelligence unit that targeted U.S. citizen activists and journalists it suspected of association with migrant “caravans” in 2018 and 2019. “[A]t least 51 U.S. citizens were flagged for interrogation—often based on evidence as flimsy as once having ridden in a car across the border with someone suspected of aiding the caravan.” As its name indicates, CBP’s “Tactical Terrorism Response Team” was created to respond to terrorist threats, not migration events.
- The Senate Finance Committee will meet October 19 for the nomination hearing of Tucson, Arizona police chief Chris Magnus, the Biden administration’s choice to be CBP commissioner. Magnus’s nomination has been delayed by Sen. Jeff Merkley (D-Oregon), who was demanding that CBP first provide more information about role the agency played in combating protesters in Portland in 2020, during the Trump administration.
- Mexico captured 652 migrants at a military checkpoint in southern Tamaulipas state on October 7. 101 of them were unaccompanied minors from Guatemala, whom Mexico’s National Migration Institute (INM, the government’s immigration authority) expelled days later.
- Border Report cites rumors of a “mother of all caravans” being organized by unnamed “activists” for October 23 in Chiapas, southern Mexico. We have seen no other source corroborating this rumor, and colleagues in southern Mexico say they haven’t heard anything.
- “There is a growing gulf between the progressive immigration values President Joe Biden professes and the enforcement policies he’s implementing at the border,” reads an analysis by Vox immigration reporter Nicole Narea, “and it’s led to confusion among immigration officials, uncertainty for migrants, and questions about whether the president has a coherent strategy on immigration at all.”
- “To be a Haitian asylum-seeker knocking at the door of the U.S. is to stand at perhaps the most visible convergence of race and empire imaginable in this hemisphere,” writes Miriam Pensack at The New Republic.
- A retired rear admiral is replacing a retired army general as the head of Mexico’s INM in the northern border state of Chihuahua.