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.
It now appears certain that the Title 42 pandemic order will remain in place after May 23, the date that the Centers for Disease Control and Prevention (CDC) had announced that it would end.
“Title 42” refers to the March 2020 restriction at U.S. borders, continued by the Biden administration, enabling the quick expulsion of all undocumented migrants, even those seeking asylum, for ostensible public health reasons. Mexico agreed to take back citizens of El Salvador, Guatemala, and Honduras expelled by land, and more recently some Cuban and Nicaraguan citizens as well. U.S. authorities have used Title 42 to expel migrants at the border more than 1.8 million times.
Title 42 had to be renewed every 60 days, and the CDC announced on April 1 that the COVID-19 pandemic’s reduced severity warranted its termination on May 23. That decision—essentially, to return to regular immigration law and restore the right to seek asylum—has met stiff resistance. Opposition has come from immigration hardliners who seek to limit access to asylum, and from moderate Democrats worried that lifting Title 42 could cause a jump in already-high levels of migration at the border during a difficult legislative election campaign.
Officials from 21 Republican state governments filed suit in federal court in April to block Title 42’s lifting; the venue they chose is the Lafayette, Louisiana courtroom of District Judge Robert Summerhays, a Trump appointee. Summerhays has already issued and extended a temporary restraining order pausing the Biden administration’s efforts to terminate Title 42. Justice Department lawyers are to present arguments before Summerhays on May 13, after which he is expected to delay the CDC’s April 1 decision and keep Title 42 in place. It is not clear whether his decision will apply border-wide or just to Texas and Arizona, the two border states among the lawsuit’s plaintiffs.
Moves to prevent Title 42’s termination are also afoot in the U.S. Congress. Legislation introduced by Sens. James Lankford (R-Oklahoma) and Kyrsten Sinema (D-Arizona) would keep Title 42 in place until after the government’s COVID emergency declaration is terminated—potentially suspending the right to seek asylum at the border for years.
Republicans are demanding that the Senate consider this legislation as an amendment to a $10 billion COVID aid bill, as a condition to allow that stalled legislation to move forward. The Democratic majority’s number two and three leaders, Sens. Dick Durbin (D-Illinois) and Patty Murray (D-Washington), say they are inclined to allow a vote on the Lankford-Sinema amendment; Majority Leader Chuck Schumer (D-New York) says he will await the House of Representatives’ passage of a COVID aid bill and decide then. Talking to Politico, Sen. Robert Menendez (D-New Jersey), who supports ending Title 42, “ predicted Democrats would likely lose an immigration vote on the Senate floor.”
“That’s right,” wrote Paul Waldman and Greg Sargent at the Washington Post on May 10. “To deal with an ongoing pandemic that has killed around 1 million Americans, Democrats must deal a blow to the asylum system, keeping the United States’ doors closed to those fleeing oppression and violence.”
While the political wrangling continues, Customs and Border Protection (CBP) has been gradually expanding exceptions to Title 42, allowing migrants deemed most vulnerable (with input from non-governmental organizations) to approach six ports of entry to seek protection. A May 11 U.S. government filing for the Louisiana litigation reports that CBP processed 1,006 migrants under Title 42 exceptions in the 7 days between May 3 and May 9. These included 487 at the San Ysidro, California port of entry; 220 at El Paso, Texas’s Paso del Norte bridge; 124 in Hidalgo, Texas, across from Reynosa, Mexico; 91 in Nogales, Arizona; 83 in Eagle Pass, Texas; and 1 in Laredo, Texas.
In other Title 42 news:
While CBP has yet to share data from April, bits of information point to migrant arrivals at the U.S.-Mexico border first increasing over the high levels reported in March, then, during the second half of April, declining to below those levels. Some of the indicators include:
The May 3-9 data pointed to decreases in encounters per day, compared to March, with single adult migrants from Colombia (-17%), Guatemala (-12%), Mexico (-10%), Honduras (-4%), and Cuba (-3%). Countries that measured increases in single adult encounters per day, compared to March, included Haiti (+410%), Venezuela (+17%), and Nicaragua (+5%).
Peru appears in the filing as the tenth-largest nation of origin of single adult migrants encountered between May 3 and 9, with 677 encounters in those 7 days. CBP’s monthly public reporting does not even specify migration from Peru, lumping it in an “other countries” category. Like citizens of Colombia, Peruvians may enter Mexico without first obtaining a visa, as part of the Chile-Colombia-Mexico-Peru “Pacific Alliance” arrangement.
Preliminary data indicate that Mexico’s migration agency (INM) apprehended 38,677 migrants in April. That is Mexico’s largest monthly migration total this year, but fewer than levels measured in August through October of 2021; Mexico set its record of 46,370 apprehensions last September. In a single day—May 7—INM reported apprehending 1,608 migrants from 38 countries, a pace that would break the agency’s monthly record if sustained.
As noted in the court filing above, there appears to be a springtime increase in arrivals of Haitian migrants at the border. Many of them are arriving in Mexico’s violence-plagued border state of Tamaulipas, a part of the border that Haitian migrants had avoided until recently. Border Report reported that 3,500 Haitians have arrived since late April in Nuevo Laredo, a city that has seen few asylum-seeking migrants in recent years because of tight control exercised by organized crime. 1,400 of them, mostly men, may have already departed Nuevo Laredo for the city of Monterrey, a few hours to the south. The same article notes, as we have heard elsewhere, that Haitians are also arriving in Reynosa, Tamaulipas, “hoping to migrate should Title 42 be lifted.” Hundreds of miles west of Tamaulipas, in Ciudad Juárez, Mexico, La Verdad reported on a church-run program that has given Spanish lessons to 70 Haitian migrants since January.
Jason Owens, the chief of Border Patrol’s Del Rio, Texas sector, tweeted that his agents had encountered “12 rescues” and “6 deceased persons” over the May 7-8 weekend alone. Six migrant deaths in two days in a single sector is an extreme amount. In all of 2020—the last year for which the agency has publicly reported migrant deaths by sector—Border Patrol reported finding 34 migrants’ remains in Del Rio.
Some, if not all, of the dead found in Del Rio appear to be drownings in the Rio Grande. They included an adult man, and a child from Angola whose sibling is still missing. On May 2, a Nicaraguan man drowned in the swiftly flowing river between Piedras Negras, Coahuila and Eagle Pass, Texas. Texas National Guardsmen told Fox News reporter Bryan Llenas, whose film crew captured the broad-daylight drowning, that they are prohibited from attempting rescues after 22-year-old Guardsman Bishop Evans died while trying to rescue a migrant in Eagle Pass on April 25.
Border Patrol, meanwhile, stands accused of under-reporting migrant deaths border-wide. The agency has counted over 8,600 migrant remains on U.S. soil, mostly of dehydration, exposure, and drowning, since 1998. The actual number is almost certainly greater, though, since over the past 10 years or so Border Patrol has been reporting fewer deaths than do local humanitarian groups or medical examiners, leaving out of its count the remains of migrants found by other entities.
This is the subject of an April 20 report from the U.S. Government Accountability Office (GAO), covered by the Intercept, which found that Border Patrol has been undercounting the actual number of migrant deaths in the U.S.-Mexico border region. For example, GAO found that Border Patrol in Arizona routinely reports finding roughly half as many remains as does the Arizona OpenGIS Initiative for Deceased Migrants.
Border Patrol has yet to share public reporting of migrant deaths in fiscal year 2021, though CNN reported last October that the agency had counted a record 557 remains that year, more than double the 247 found in 2020.
A May 3, 2022 memorandum from CBP Commissioner Chris Magnus, revealed on May 6, terminated Border Patrol’s Critical Incident Teams (CITs), secretive units that often arrive at the scene when agents may have misused force or otherwise behaved in a way that might involve local law enforcement. While Critical Incident Teams may have other roles, they stood accused of altering crime scenes, interfering with law enforcement investigations, and coming up with exculpatory evidence to protect agents. (See the “Critical Incident Teams” tag at WOLA’s new Border Oversight database of border law enforcement conduct.)
No other law enforcement agency has a similar internal exoneration capability, and the CITs’ existence is not specifically authorized by law, according to the Southern Border Communities Coalition (SBCC), a non-governmental organization that revealed the units’ extent in October and has led efforts to abolish them. CITs have existed in some form since 1987, and include 12 agents per Border Patrol sector, according to a CBP PowerPoint presentation obtained by the SBCC.
“By the end of FY [Fiscal Year] 22,” Magnus’s memorandum reads, “USBP [U.S. Border Patrol] will eliminate all Critical Incident Teams and personnel assigned to USBP will no longer respond to critical incidents for scene processing or evidence collection.” CBP’s internal affairs body, the Office of Professional Responsibility (OPR), will take “full responsibility for responding to critical incidents” by October 1, 2022. OPR will require “substantial resources” to take on this mission, the memo reads; Magnus’s May 11 testimony to the House Appropriations Committee notes that the 2022 Department of Homeland Security (DHS) budget “included $74 million for 350 new Office of Professional Responsibility (OPR) Special Agents.”
The CITs’ termination comes just over six months after the SBCC alerted Congress to their existence. SBCC member Andrea Guerrero, executive director of Alliance San Diego, had learned of the teams’ interference with the investigation of migrant Anastasio Hernández’s 2010 beating death in San Diego. Guerrero and colleagues at SBCC laid out their case in an October 27, 2021 letter to congressional oversight committee chairpeople asking them to investigate the CITs.
In a statement from SBCC, María Puga, Anastasio Hernández’s widow, called the CITs’ termination “an important first step towards addressing the longstanding problem of Border Patrol impunity.” SBCC “commends CBP for taking this action and acknowledges the leadership of Commissioner Magnus,” reads the statement, which calls on Magnus to ensure that all CIT-related records be preserved so that those who “have engaged in criminal acts of obstruction of justice” in the past may be held accountable.
Also present at an SBCC press conference was Marisol García Alcántara, a 37-year-old undocumented Mexican mother of three whom a Border Patrol agent shot in the head in June 2021 while she sat in the backseat of a vehicle in Nogales, Arizona. A CIT was at the scene in the case of García, who was deported to Mexico without ever being questioned about the incident by any U.S. authorities. The BBC published a May 11 profile of Ms. García, who continues to suffer memory loss as a result of her injury, which includes bullet fragments lodged in her brain.
In southeast Arizona, a police report, shared by the Intercept, confirmed that a CIT was involved in the aftermath of the February 19, 2022 shooting death of Carmelo Cruz-Marcos, a 32-year-old migrant from Puebla, Mexico.
Agent Kendrek Bybee Staheli claimed that he shot Cruz-Marcos, who died of four bullet wounds to his head and chest, out of fear for his life when the migrant moved to throw a rock at him at close range. Cruz-Marcos was with several other migrants whom Staheli and Agent Tristan Tang were chasing late at night in the desert; none witnessed the interaction that led to Cruz-Marcos’s death.
The Cochise County Sheriff’s report cites migrant witness Carlos Torres Peralta, who had learned some English while living in Wisconsin for three years:
He said the agent told his companion [Cruz-Marcos], “Stop or I’m going to shoot you. ” He said his companion ran off and when he tried to run he stumbled on rock and the agent caught him. He said the agent told him, “This is America motherf—.” He referred to the agent as Agent Stain. I believe he was referring to Agent Staheli. He said the second agent yelled at Agent Staheli if he was ok and Agent Staheli said he was ok.
…Carlos further added information concerning Agent’s Staheli and Tang. He states to SA Chiriguayo that he believed the agents had moved the decedent’s body, repositioned the body, and he heard them discussing how they should follow up with statements and not say anything to anyone, and that Agent Tang had told Agent Staheli “it would all be ok and that he had his back.” Carlos further said he heard Agent Tang tell Agent Staheli that he should say he was attacked with a rock. Carlos statements would suggest the agents had covered up evidence and would not be truthful with any after action interviews they would have.
In a May 6 letter to the Cochise County Sheriff’s Department, County Attorney Brian McIntyre reported finding insufficient evidence to contradict Agent Staheli’s self-defense claim beyond a reasonable doubt, and declined to prosecute.