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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Title 42 may end in late May
Every 60 days, the Centers for Disease Control and Prevention (CDC) must decide whether to renew or terminate the “Title 42” pandemic border provision, which has allowed the Department of Homeland Security (DHS) to expel undocumented migrants quickly from the U.S.-Mexico border without affording them a chance to seek asylum.
The most recent 60-day period expired on Wednesday, March 30. At mid-day on April 1, the CDC published its order. Title 42 is to be terminated and phased out by May 23.
This decision is unsurprising in the face of public health data pointing to a waning pandemic, including very low positivity rates for migrants currently arriving at the border and in 91 percent of U.S. border counties, making the pandemic authority’s continued use difficult to justify. A blistering March 23 article in the New England Journal of Medicine concluded, “The rationale behind the Title 42 order not only is unsupported by evidence but also, in some respects, is blatantly false.” Biden administration officials continue to indicate that they will abide by whatever the CDC decides.
WOLA published a March 31 overview of what might happen after Title 42’s late-May repeal. “This return to normal U.S. asylum law will bring an end to a policy that has placed tens of thousands of people in harm’s way in Mexican border cities,” it finds—but DHS will need to adjust nimbly and surge resources to the border in order to avoid chaos and overcrowding. WOLA’s analysis expects already-high levels of migration to increase further in the weeks or months up to and after Title 42’s lifting: though arrivals of single adults may decline, families’ numbers will increase, especially those from the four countries subject to 98 percent of today’s Title 42 expulsions: Mexico, El Salvador, Guatemala, and Honduras. WOLA’s overview voices concern that DHS preparations so far are insufficient to process a large flow of protection-seeking migrants in an orderly way.
As usually happens in spring—and especially during a worldwide increase in pandemic-spurred migration—arrivals at the U.S.-Mexico border are already heavy. Border Patrol Chief Raúl Ortiz told this week’s “Border Security Expo” convention that March migrant encounters are likely to reach 200,000, a monthly threshold crossed only a few times in this century. In a March 29 call with reporters, unnamed DHS officials said that personnel are currently encountering about 7,101 migrants at the U.S.-Mexico border each day, up from 5,900 per day in February. Facilities in Border Patrol’s Yuma Sector, which straddles the Arizona-California border and has been a major destination for non-Mexican and non-Central American migrants, are at nearly 300 percent of capacity, and the Del Rio, Texas Sector is also “maxed out,” the Washington Post reported.
When Title 42 ceases, officials expect migration to increase still further. DHS personnel on the March 29 press call said they are preparing for scenarios of 12,000 migrants per day and 18,000 migrants per day. That latter figure adds up to 540,000 per month, nearly 2 1/2 times the largest monthly number Border Patrol has ever publicly reported. Officials caution that these are planning scenarios, not projections or predictions.
A DHS official told reporters that 30,000 to 60,000 migrants currently in northern Mexico are in “wait and see” mode, and “could seek entry within hours” of a Title 42 repeal, CNN reported. An “official familiar with the planning” told the New York Times that a post-Title 42 jump in border crossings “would likely last a few weeks.”
Chaos and overcrowding at U.S. border facilities would not only create a humanitarian crisis, but would create images that immigration hardliners who are skeptical of asylum would use as political fodder to attack the Biden administration in the runup to November’s hotly contested congressional elections. Officials have laid out a series of steps they are taking, or plan to take, ahead of Title 42’s likely late-May lifting. It remains to be seen whether these steps will be enough. They include the following.
Physical infrastructure to receive protection-seeking migrants: “CBP’s [U.S. Customs and Border Protection’s] processing capacity will be determinative,” a recent Migration Policy Institute report points out. “Officials will need to be able to quickly transport migrants to Border Patrol stations or processing centers and efficiently register migrants’ information and move them along, while maintaining safe and humane conditions.” That has been a problem in the past: recent years’ mass arrivals at the border have come with disturbing imagery of families and children packed for days or weeks in overcrowded Border Patrol facilities, or even under bridges near border crossings.
Right now, CBS News reports, CBP’s short-term processing facilities can hold about 16,000 migrants at a time. “But the government would need to expand CBP’s holding capacity to accommodate between 25,000 and 30,000 migrants in U.S. custody on any given day if the worst case scenarios materialize,” according to a DHS “Southwest Border Strategic Concept of Operations” document.
The planned DHS response is to expand capacity at “soft-sided” migrant processing facilities (the term means “comprised of big tents”) in Yuma, Del Rio, and Texas’s Rio Grande Valley. A longer-term plan, using 2022 appropriations, would build more permanent multi-agency “joint processing centers” for this purpose, but those won’t be online in the immediate post-Title 42 period.
DHS is also reportedly signing contracts for transportation of migrants needing processing, which could double the current capacity of about 5,000 migrants by land and 350 by air each day.
Personnel to staff these facilities: The processing of protection-seeking migrants continues to rely heavily on armed, uniformed Border Patrol agents. A big jump in migration will create an urgent need for additional personnel. Border Patrol has “detailed 350 additional Border Patrol agents to assist at the U.S. southern border and another 150 agents are helping with processing remotely,” according to CNN. A DHS strategic planning scenario cited by CBS News foresees augmenting that with “up to 2,500 law enforcement officers, 2,750 support staff and more than 1,000 medical personnel to the U.S.-Mexico border.”
Involving FEMA and setting up a coordination center: DHS has set up a “Southwest Border Coordination Center (SBCC)” that, a March 30 Department fact sheet notes, will “coordinate planning, operations, engagement, and interagency support” during a post-Title 42 increase in migration. On March 18 DHS named a senior official of its Federal Emergency Management Agency (FEMA), MaryAnn Tierney, to head the SBCC. FEMA “is currently providing ‘technical assistance’ to border authorities, but has not deployed personnel to the southern border,” CBS News reported.
Vaccinating migrants in custody: On March 28 DHS began offering COVID-19 vaccines to migrants in custody who cannot show proof of vaccination. CBP plans cited by CBS news call for expanding vaccinations from a current rate of 2,700 daily doses to 6,000 per day by the end of May. Asylum seekers who refuse vaccines and cannot be detained will be released with monitoring devices and “stringent conditions” on their movements, the New York Times reported. The Times added that “President Biden’s domestic policy adviser, Susan Rice, has privately raised concerns that it would provide an incentive for more undocumented migrants to try to cross the border,” an argument that has lost relevance as U.S. vaccination rates have slipped below those of many Latin American countries.
New asylum rules: Regulations published March 29, to begin taking effect around May 28, will seek to speed up asylum adjudication by giving asylum officers the ability to decide claims, and by reducing timeframes at key steps in the process. Advocates like the American Immigration Council voice concerns that the sped-up procedures could harm asylum seekers’ due process and ability to obtain legal representation. Either way, the new rules will be rolled out slowly and may have little impact on the ability to process a post-Title 42 wave of asylum seekers.
The Migration Policy Institute, which developed a proposal on which the new rules are based, notes that U.S. Citizenship and Immigration Services (USCIS), which employs asylum officers, would also have to expand dramatically: “As of March 2021, USCIS employed 785 asylum officers; the new rule predicts the agency will need to hire between 794 and 4,647 new officers and staff to process between 75,000 and 300,000 cases annually.”
Budget needs: In order to meet post-Title 42 asylum processing and adjudication needs, the Biden administration may need more money. The 2022 Homeland Security appropriation, signed into law as part of the federal budget on March 15, “would not be sufficient to fund the potential resource requirements associated with the current increase in migrant flows,” the DHS fact sheet warns. The Department says it will need to reallocate and reprioritize funds, and perhaps resort to “engaging with Congress on any potential need for supplemental appropriations.”
With Title 42 set to end in as little as seven weeks, it’s not clear whether these announced preparations will come in time, or be sufficient, to avoid disorder and overcrowding at the border. “There have been no major changes to how migrants are processed at the U.S.-Mexico border and no increase in holding facilities for them,” the Associated Press warns. “The immigration court backlog continues to soar to more than 1.7 million cases.”
The Biden administration’s conservative critics foresee a mess at the border. Noting that processing can take hours per person, the head of the Border Patrol employees’ union, Brandon Judd, told the New York Times, “There’s no way we’re prepared to deal with what’s coming. We’re going to see complete chaos.” Sen. John Cornyn (R-Texas) told reporters, “Border Patrol agents told me they expect a tsunami of humans to come across the border and the Border Patrol has said they will lose control entirely.”
Most congressional Democrats, including Senate Majority Leader Chuck Schumer (D-New York) and the Congressional Hispanic Caucus, have been calling for Title 42’s end for a while. However, a handful of centrist and conservative Democrats, arguing that DHS is not ready to deal with an increased migration flow, have joined Republican calls to keep Title 42 in place for now. These include Texas border-district Reps. Vicente González and Henry Cuéllar, who signed a letter, along with all Republican members of Texas’s congressional delegation, calling to keep Title 42 in place because “DHS appears unprepared to handle a likely unprecedented increase in apprehensions along the southwest border.” Sen. Joe Manchin (D-West Virginia) sent a letter to CDC Director Rochelle Walensky warning, “now is not the time to throw caution to the wind.” The Senator later told CNN, “Oh my goodness. Just watch the news y’all put out every day, what’s coming across.”
Arizona’s two moderate Democratic senators, Kyrsten Sinema and Mark Kelly, wrote a March 24 letter making similar arguments to keep Title 42 in place until DHS is “completely ready to implement and coordinate a comprehensive plan.” Two prominent Arizona-based legal and humanitarian organizations, the Kino Border Initiative and the Florence Project, responded in a March 25 letter: “We agree with Senators Sinema and Kelly that the Biden administration should have an ascertainable plan to end Title 42 safely and humanely and should have begun coordinating with service providers months ago. However, there is little to be gained by continuing this policy to put a plan in place when federal agencies have already had over two years to plan for an end to what was supposed to be a short-term emergency measure.”
Many groups defending migrants’ rights are unhappy with Title 42 remaining in force until May 23, arguing that it should end immediately. “We have clients in crisis right now seeking asylum at the border who are sick or who have already been kidnapped and tortured in Mexico,” Jessica Riley of the south Texas-based Project Corazón told the New York Times.
Mexican border cities remain hazardous for those made to “Remain in Mexico”
Two reports BuzzFeed published this week point to dangerous and inhumane conditions suffered by asylum-seeking migrants who have been sent into Mexican border cities to await their U.S. asylum hearings, under the court-ordered revival of the “Remain in Mexico” program. Many are in substandard shelters, some have disappeared, and insecurity has forced DHS to suspend Remain in Mexico enrollments in one border city.
Between December and February, the Biden administration had complied with a Texas court’s order by sending nearly 900 single adults across into Mexico with orders to report at U.S. border crossings for asylum hearings. Unlike the Remain in Mexico program pioneered by the Trump administration, this iteration is meant to come with assistance for Mexican migrant shelters accommodating migrants made to “remain.” That aid is administered by the State Department’s Bureau for Population, Refugees, and Migration.
Despite that promised improvement, BuzzFeed found that conditions in these shelters fall short of the “safe and secure” standard foreseen in the Remain in Mexico program’s reboot, and in fact make it difficult for asylum seekers to obtain counsel and prepare their U.S. immigration court cases.
BuzzFeed reporters Adolfo Flores and Hamed Aleaziz cite letters from two legal aid organizations that have been trying to work with migrants enrolled in Remain in Mexico, the South Texas Pro Bono Asylum Representation Project (ProBAR) and the Vera Institute of Justice. Both organizations found their ability to communicate with clients restricted by “perceived threats from the shelter staff, safety concerns, lack of or limited availability of Wi-Fi connections, and restricted access to personal phones.” In San Diego, immigrants told Vera that when they go to attend their U.S. hearings, their shelter space “is not guaranteed upon return.”
Security concerns abound as well. In Ciudad Juarez, many migrants subject to Remain in Mexico are staying in a large shelter run by Mexico’s federal government. There, a man who had been expelled under Title 42 was found dead on March 7, but his death had gone “unnoticed anywhere from more than 24 hours to up to three days.” ProBAR cites a shelter from which three migrants under Remain in Mexico left on an errand, were kidnapped, and have since missed their U.S. hearings. Two women disappeared from another shelter after leaving to purchase medicine on February 24; when migrants asked shelter operators to call police, “the staff refused, saying they didn’t trust authorities.” (A San Antonio television station this week profiled a gay Ecuadorian asylum seeker, enrolled in the Trump-era Remain in Mexico, whose case remains in limbo because he missed his U.S. court date while kidnapped.)
“Perhaps both governments created too high expectations when announcing MPP 2.0 and how it would work because these are civil society shelters and they struggle a lot,” James MaGillivray of the International Organization for Migration (IOM) Mexico office told BuzzFeed. “Even if they receive support from us and other NGOs and US agencies, at the end of the day… they’re going to keep struggling.”
BuzzFeed also obtained a March 18 email from a State Department official strongly advising DHS to pause Remain in Mexico enrollments in the border city of Nuevo Laredo, Tamaulipas, across from Laredo, Texas. There, as WOLA’s March 18 Border Update noted, Mexican authorities arrested and extradited the city’s maximum organized crime figure, Juan Gerardo Treviño, alias “El Huevo” (“The Egg”), on March 14. The arrest triggered days of violence around the city, including cartel gunmen firing on, and lobbing grenades at, the U.S. Consulate. Migrants enrolled in Remain in Mexico from Laredo have the option of being transported to the somewhat safer city of Monterrey, a few hours south of Nuevo Laredo. Even that is currently unsafe, the State Department email finds, as “immigrants escorted in the area under the protection of the Mexican National Guard were attracting a lot of attention, which could put them in the crosshairs of criminal networks angry with the government,” BuzzFeed reported.
2023 budget request is out
On March 28, less than two weeks after the 2022 federal budget finally became law, the White House sent to Congress its budget request for fiscal 2023. This includes $56.7 billion in discretionary funding for the Department of Homeland Security next year, up $2.9 billion from 2022.
Key documents include the White House’s overall budget proposal and Appendix for Homeland Security, and the lengthy “Budget Justification” documents for each individual DHS agency.
While WOLA staff have not yet been able to do a “deep dive” into these documents, the following border-related elements stand out to us.
- CBP’s budget would be $17.45 billion, up from $15.95 billion in 2022. That would be enough to fund 65,621 positions.
- No new money would go to border barrier construction. However, “CBP is moving forward with some activities necessary to address life, safety, environmental, and remediation requirements, and is conducting robust planning (including environmental planning) and stakeholder engagement related to future/ongoing border wall projects.”
- Over $1 billion would go to new border security technologies.
- CBP would receive funding to hire 300 new Border Patrol agents and 300 new Border Patrol Processing Coordinators—non-law-enforcement personnel who assist with processing recently arrived migrants, particularly asylum seekers.
- The proposal calls for $765 million for U.S. Citizenship and Immigration Services (USCIS), up from $250 million in 2022, to help the agency, among other purposes, “efficiently process increasing asylum caseloads.”
- $375 million would go to implementing the Biden administration’s new asylum rule.
- $494 million would go to “processing and care costs” for migrants apprehended at the border.
- The DHS Inspector-General would see a budget increase from $220 million in 2022 to $233 million in 2023.
- $20 million would go to the Family Reunification Task Force, which continues to seek to locate parents of children separated by the Trump administration’s so-called “Zero Tolerance” policy.
- Holding adult migrants in detention centers will cost Immigration and Customs Enforcement (ICE) $148.62 per day per detention bed, with a request to fund 9,000 fewer beds than in 2022.
- The Justice Department request asks for $1.4 billion for the immigration court system, up $621 million from 2021, to address the system’s giant backlog of 1.7 million cases. This includes funds to hire 100 new immigration judges. On March 25, Justice announced the hiring of 25 new immigration judges. As of January, the system had 578 judges.
The CBP Budget Justification also includes some notable statistics among its performance measures.
- CBP reports that 26.6 percent of migrants encountered at the U.S.-Mexico border in 2021 were “encountered multiple times.” That is up from less than 11 percent in the years just before the pandemic. The average number of repeat encounters was 3.14.
- Border Patrol estimates that it apprehended 82.6 percent of all migrants who attempted to cross undocumented into the United States. That is the second-highest “interdiction effectiveness rate” reported in the five-year 2017-2021 period.
- Joint operations conducted “by Border Patrol agents and Mexican law enforcement partners” declined to 22 in 2021, from 43 in 2018.
Links
- “For many years, Cubans began their journey to the U.S. border in South America,” notes a new WOLA commentary on migration from Cuba. “Things changed in November 2021, when Nicaragua lifted visa requirements for Cuban nationals, opening a new, and shorter, path to reach the U.S.”
- “Beyond the Bridge,” a new report by Robert F. Kennedy Human Rights and the Haitian Bridge Alliance, documents examples of U.S. and Mexican personnel abusing and mistreating Haitian migrants during and after a large-scale migration event in Del Rio, Texas last September.
- The U.S. government had used Title 42 to expel 600 Colombian migrants on 6 flights to Colombia during the first 4 weeks of March, CBS News reporter Camilo Montoya-Gálveztweeted, citing the head of Colombia’s migration agency.
- In early February, Tijuana authorities evacuated and bulldozed a year-old tent encampment by the port of entry to San Diego, at which several hundred migrants had been living as they awaited a post-Title 42 opportunity to seek asylum. (See WOLA’s February 11 Border Update.) Almost two months later, the San Diego Union-Tribune reported, the people who lived in the encampment “have scattered.” Some are in shelters, some are living elsewhere in the city, some have crossed irregularly into the United States, and some are still living in tents.
- In Ciudad Hidalgo, Chiapas, the busiest Mexico-Guatemala border crossing (near Tapachula), migrants continue to protest the slow pace of immigration officials’ processing of their status requests. Milenio notes that the Suchiate River, which separates Mexico from Guatemala here, is currently only two feet (60cm) deep at its deepest point.
- At VICE, Nathaniel Janowitz reports on the proliferation of .50-caliber sniper rifles in Mexico, smuggled across the border after being purchased at U.S. gun shops. No U.S. federal law expressly prohibits trafficking in firearms.
- VICE also reported about a “secret deal with Mexican officials” that allowed 35 Russian asylum seekers to cross from Tijuana to San Diego “under cover of night” at “a checkpoint that has been closed to the public for several months.” This allowed the Russian individuals to cross ahead of migrants from other nationalities who have been waiting for the chance to ask for asylum at the U.S. port of entry, which remains closed to asylum seekers, with rare exceptions, due to Title 42.
- Bethesda Magazine published an interesting feature about Central American children who arrived at the border unaccompanied and are now trying to adjust to life and school in Montgomery County, in suburban Washington, DC, which has one of the United States’ largest numbers of unaccompanied minors who have been released to sponsors.
- In a new book Will Hurd, who represented a west Texas border district in Congress, tells of taking other Republican representatives to visit the border: “Some were nervous when I took them into Mexico. Many were expecting the Battle of Mogadishu in 1993, with shootouts in the streets like Black Hawk Down.”