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:

  • The Supreme Court upheld the Biden administration’s cancellation of the “Remain in Mexico” program. By a 5-4 vote, judges determined that lower courts could not compel the administration to re-start the Trump-era program, as it had by sending about 5,000 asylum seekers back to Mexican border cities since December.
  • A horrific tragedy in San Antonio, Texas—the death of 53 migrants smuggled in a stifling hot tractor-trailer—drew attention to the dangers faced by those unable to access legal asylum and migration channels, during a year that appears likely to see record-breaking numbers of deaths near the U.S.-Mexico border.
  • The House Appropriations Committee drafted its 2023 Homeland Security budget bill. It includes a Republican amendment that, if made law, would preserve the Title 42 pandemic expulsions policy, potentially for years.

Supreme Court allows Biden administration to terminate “Remain in Mexico”

With a 5-4 decision on June 30, the U.S. Supreme Court decided that the Biden administration did not violate immigration law when it ended the controversial Trump-era Migrant Protection Protocols (MPP) or “Remain in Mexico” program. The Department of Homeland Security (DHS) may now proceed with its plan to stop sending asylum seekers to await their U.S. hearings in Mexico.

The Trump administration, which began implementing Remain in Mexico in January 2019, sent 71,076 asylum-seeking migrants back into Mexico until their next immigration court dates. At least 1,544 of them suffered “murder, rape, torture, kidnapping, and other violent assaults” in Mexico , Human Rights First has reported.

Fulfilling a campaign promise, the Biden administration began shutting down the program with a February 2021 executive order and a June 2021 memorandum, bringing many of the asylum seekers into the United States. That process was halted in August 2021 when Amarillo, Texas federal judge Matthew Kacsmaryk ruled—in a suit brought by the Republican attorneys-general of Texas and Missouri—that the Biden administration had not properly terminated Remain in Mexico. Kacsmaryk ordered the program to restart, and the Biden administration appealed, issuing a new termination memorandum in October 2021. In December, the 5th Circuit blocked the administration’s attempt to end the program. The Supreme Court heard arguments in April.

Since its court-ordered restart of the program got underway in December, the Biden administration sent more than 4,300 (or 5,114, or at least 5,600) asylum seekers, primarily from Cuba, Nicaragua, and Venezuela, back to Mexico to await hearings.

Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s three liberal members in agreeing that the renewed “Remain in Mexico 2.0” may now come to an end. “The Government’s rescission of MPP did not violate section 1225 of the INA [Immigration and Nationality Act], and the October 29 Memoranda constituted final agency action,” the court’s decision reads.

While the Republican state attorneys-general may persist with their litigation before Judge Kacsmaryk, it appears that he and other lower-court judges are now unable to force DHS to revive the program while litigation proceeds through lower courts.

Should a challenge to Remain in Mexico’s termination make its way back up to the Supreme Court, the justices’ decision indicates that they might strike it down. The majority found that Remain in Mexico was a discretionary program: something that the Biden administration “may” continue carrying out, but was not required to. The court noted that the law also allows DHS other options, including detention (which Congress doesn’t fund fully enough to detain all asylum seekers) or parole into the U.S. interior, which is increasingly being used.

The Court also found that Remain in Mexico carries too many “foreign affairs consequences” for it to be mandatory. Forcing the administration to negotiate with Mexico to accept other countries’ asylum-seeking migrants “imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose,” the decision reads.

The count obtained by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) project (which is higher than DHS’s publicly reported count) shows that as of May 31, the court-ordered revival of Remain in Mexico had sent 5,114 asylum seekers to Mexican border cities. 1,109 of whom have had their cases decided or closed, with the rest still pending. It is not yet clear whether the remaining 4,000 will now have an opportunity to re-enter the United States to continue pursuing their cases.

Meanwhile, the Title 42 pandemic expulsions policy, prolonged by a Louisiana judge in May under other litigation from Republican state attorneys-general, remains in effect. While DHS returned 1,460 migrants to Mexico under the Remain in Mexico program in May, DHS expelled migrants 100,699 times under Title 42 that same month, usually into Mexico and always without a U.S. hearing date.

Tragedy in San Antonio highlights alarming increase in border deaths

In the late afternoon on June 27, a very hot day in San Antonio, Texas, a worker encountered a horrible scene along a road on the city’s outskirts. A refrigerated tractor trailer with no air conditioning unit had been left with its doors partially open. People inside were crying for help, but too weak to leave. Inside, as PBS reported it, were “people piled on top of each other. Bodies were also found strewn along the road near the scene.”

Sixty-seven migrants were packed into the truck’s container, suffering from heatstroke, heat exhaustion, and dehydration. Forty-seven were already dead when the truck was discovered. Another six have since died while receiving medical attention, raising the death toll to fifty-three.

When the toll stood at 51, 39 of the victims were men, and 12 were women. Mexican media cited “27 Mexicans, 14 Hondurans, 7 Guatemalans, 2 Salvadorans, and 1 body remaining to be identified.” Three of the survivors are Mexican and the rest had not had their nationalities determined.

U.S. federal authorities have arrested the truck’s driver, Homero Zamorano, who was reportedly trying to pass himself off as one of the migrants, as well as a man the Justice Department describes as an associate, and two men arrested leaving the address of the truck’s registration. Zamorano and his associate are U.S. citizens; the others are undocumented Mexican citizens.

This was the worst-ever mass fatality of migrants smuggled in a cargo container. The worst prior cases were a 2003 event in Texas that claimed 19 lives, and the death of 10 people aboard a truck found in a San Antonio Wal-Mart parking lot in 2017.

The toll adds to what is likely to be the worst year ever for migrant fatalities in the U.S.-Mexico border region, as WOLA laid out in a June 28 commentary. (WOLA has highlighted the worsening trend of migrant deaths in its Border Updates of May 13, May 27, June 3, June 17, and June 24.) The International Organization for Migration’s Missing Migrants Project counted 290 missing or deceased migrants in the U.S.-Mexico border region so far in the 2022 calendar year, and 728 in 2021. (This number appears to include some deaths on Mexican soil.)

At VICE, Luis Chaparro reported that the migrants aboard the truck “each paid upwards of $3,000 for the trip, according to two sources with knowledge of the agreement.” A smuggler affiliated with the Northeast Cartel, which is dominant in the border city of Nuevo Laredo, said “the price rose to $8,500 for migrants seeking transportation from Guatemala and Honduras.”

The commissioner of Mexico’s National Migration Institute (INM), Francisco Garduño, insisted that the tractor-trailer did not cross into Texas from Mexico. The migrants likely crossed separately and were concentrated, and boarded the truck, on the U.S. side of the border in Laredo, Texas.

On the three-hour drive from Laredo to San Antonio, the truck passed through two Border Patrol checkpoints, in Encinal and Cotulla, Texas, without agents discovering the people inside the truck’s stifling container. This is not unusual: Reuters reported that “between 6,000 and 6,800 trucks cross northbound through the Nuevo Laredo-Laredo international port of entry daily, according to Mexican customs data,” making it impractical to stop and inspect each one at interior checkpoints.

“These unfortunate events have to do with the situation of poverty and desperation of our Central American and Mexican brothers and sisters,” said Mexican President Andrés Manuel López Obrador. “It happens because there’s also human trafficking and lack of controls at the border between Mexico and the United States and inside the United States.”

The governor of Texas, Greg Abbott (R), skipped concern for the victims and opted for the political angle: “These deaths are on Biden. They are a result of his deadly border policies,” he tweeted within hours of the bodies’ discovery. The Texas Tribune noted that Abbott had taken a much softer tone in his response to the 2017 WalMart parking lot tragedy, which took place when Donald Trump was in office. This week, the Governor said he intends to increase state vehicle inspections, a step he took near border crossings in April, snarling cross-border trade for days.

More than a dozen people, including children, survived the June 27 tragedy. It is not yet clear what will become of them. It is possible that they could be offered visas as cooperating witnesses in the government’s investigation of the smuggling case. It’s similarly possible, though, that they could be expelled under Title 42. Immigration attorney Taylor Levy, who has represented many asylum seekers at the border, told the Texas Tribune that it is not unusual for survivors to be held in federal custody and removed after investigations conclude.

WOLA’s response called for a fundamental re-examination of policies leading to this year’s wave of preventable deaths, especially the “prevention through deterrence” approach that channels migrants into dangerous areas, and measures like Title 42, “Remain in Mexico,” and other efforts to block asylum seekers from pursuing legal channels. “Many of the people trapped in that truck in San Antonio could have approached a land port of entry (official border crossing) and asked the CBP officials there to apply for asylum in the United States, as is their legal right,” WOLA wrote. “But that is impossible, as Title 42 has left the ports of entry closed to asylum seekers.”

Fernando García of the El Paso-based Border Network for Human Rights echoed that: “There’s a direct relationship between U.S. deterrence strategies at the border and migrants dying at the border,” he told the Washington Post. “The numbers will go higher.”

“No person gets in a crowded truck and puts their life at risk if the border is open,” Aaron Reichlin-Melnick, policy director of the American Immigration Council, told the PBS NewsHour. “The reality is, for the migrants who are in that truck, there was no way for them to come into the United States legally, even if they were attempting to seek asylum. Since March of 2020, the ports of entry have been shut to asylum seekers. “

“Without sufficient pathways to safety, vulnerable and desperate people will continue to be preyed upon by smugglers or forced to resort to desperate measures to cross borders, said Matthew Reynolds, the UN Refugee Agency (UNHCR) representative to the United States and the Caribbean. “What is needed are safer alternatives to these dangerous irregular movements, ensuring expedient access to asylum procedures for those seeking international protection. Preventing the loss of life must be the priority for all.”

“The policy of sealing off, the lack of coordination between the countries involved, and inflammatory rhetoric against migrants have had deadly consequences for those seeking undocumented entry into the United States and who are easy prey for criminals who control access,” wrote Enrique Acevedo of CBS News at the Washington Post.

“When these incidents occur, there is a lot of movement and declarations from politicians, but as soon as a few days pass, they are forgotten, which means that there are no thorough investigations, that the families do not receive justice, that there is no punishment for the people who smuggle migrants, and when there is none, the events are repeated; this is the example of what has happened in the United States,” Ana Lorena Delgadillo of the Foundation for Justice and the Democratic Rule of Law (FJEDD), a Mexican organization, told Animal Político, adding that impunity for smuggling networks and corrupt government associates is the norm.

House appropriators would codify Title 42

The U.S. House of Representatives’ Appropriations Committee met on June 24 to mark up (amend and approve the draft of) its bill to fund DHS in 2023. The Democratic-majority committee passed a generally progressive bill: it would cut Immigration and Customs Enforcement (ICE) detention capacity, increase spending to improve humanitarian conditions for Customs and Border Protection (CBP) detainees, and fund environmental remediation to undo damage done by border wall construction.

During the June 24 proceedings, however, the Committee adopted a Republican amendment that, if maintained in the final bill, could cement the Title 42 pandemic expulsions policy in place. The provision, unexpectedly introduced by Rep. Dan Newhouse (R-Washington), would force DHS to keep enforcing Title 42 until six months after the expiration of the COVID-19 national emergency, which “may not occur for years to come,” as the American Immigration Council’s Aaron Reichlin-Melnick puts it.

Until that time, DHS would be prohibited from spending funds to process migrants under regular immigration law if they could have been subject to Title 42. (It’s not clear what “could have been” means in this case. Nearly all migrants “could” be expelled but millions since March 2020 have not been, under both the Trump and Biden administrations, for reasons ranging from acute vulnerability to the cost of flying them back to their countries of origin.)

During the Committee’s debate, the chairwoman of the Appropriations Subcommittee on Homeland Security, Rep. Lucille Roybal-Allard (D-California), spoke against Rep. Newhouse’s amendment. But when the amendment came up for a voice vote, the video record showed no legislator audibly saying “no.” The House bill, then, now includes the language preserving Title 42.

The next step is normally for the Homeland Security appropriation to go to the floor of the House of Representatives for debate and a vote. However, as this is one of the most controversial bills in the annual federal budget process, it rarely receives separate consideration in the full House. It ends up being passed together with other budget bills as an “omnibus” package, leaving little opportunity for open debate and amendment. (The House hasn’t passed a standalone Homeland Security appropriation since its 2015 bill.) House and Senate appropriators more often negotiate common omnibus language separately, presenting it for a last-minute up-or-down vote as the government approaches a “shutdown” deadline.

As a result, the Newhouse Title 42 language may not make it into the final 2023 appropriation. But the possibility cannot be ruled out.

Update: on the afternoon of June 30, Rep. Newhouse added a similar amendment to the Labor and Health and Human Services appropriation. Again, it passed on a voice vote with a notably quiet set of Democratic “no” votes. Three Democratic Committee members spoke in opposition. The debate begins at 4:42:25 in this video.

Other News

  • Migration will be a main topic when Mexican President Andrés Manuel López Obrador meets U.S. President Joe Biden at the White House on July 12.
  • The U.S. Coast Guard reports interdicting 2,967 Cuban migrants at sea since October 2021, the most in any fiscal year since 2016 (5,396).
  • “For the estimated 30,000 migrants scattered around Tapachula who are waiting to continue their migration journeys, there are limited avenues for survival,” reads a Cronkite News report from the Mexico-Guatemala border zone, at the Tucson Sentinel. Mexico’s migration authorities require that those seeking asylum in Mexico’s system stay in Tapachula, if they arrive in that part of the border, while awaiting resolution of asylum claims.
  • Another migrant “caravan,” many of its members Venezuelan, departed Tapachula on June 24, some of its members demanding a “humanitarian corridor” to the U.S. border. Mexico’s National Migration Institute issued about 3,000 (perhaps 4,000) Multiple Migration Forms allowing “caravan” participants to remain in the country for 30 days.
  • In Nogales, Arizona, CBP is installing a “22-Meter Persistent Ground Surveillance System Aerostat”—basically a tethered blimp equipped with cameras. The agency has used these blimps, with Defense Department support, in south Texas’s Rio Grande Valley Sector. “An agreement with the Department of Defense is allowing the USBP [U.S. Border Patrol] to expand the number of aerostats across the southwest border,” CBP reports. “There are currently 17 systems that are scheduled to deploy throughout multiple sectors this fiscal year.” Another will go up in Sasabe, Arizona.
  • Combining children who arrive unaccompanied and those who arrive with parents or other family members reveals that Border Patrol apprehended 293,218 children in fiscal year 2021 and 321,708 children in fiscal year 2019, according to new data obtained by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) program. Last year, 47 percent of migrants who weren’t expelled under Title 42 were children.
  • The Biden administration’s pick to head ICE, Harris County, Texas Sheriff Ed Gonzalez, has withdrawn his nomination more than a year after it was first sent to the Senate. Though Gonzalez’s nomination passed the Senate Homeland Security and Governmental Affairs Committee on a party-line vote, it was not brought to the full Senate. Republicans, led by Sen. James Lankford of Oklahoma, objected to Gonzalez’s refusal, as sheriff, to cooperate with a voluntary program to hand over undocumented arrestees to ICE. The agency has not had a Senate-confirmed director since the Obama administration.
  • In the last four months, Mexico has sent 1,050 army soldiers, including special forces and paratroopers, to the violence-plagued border city of Reynosa, across from McAllen, Texas.
  • A “2020 legal settlement between the American Civil Liberties Union and CBP says the agency can no longer restrict people from filming and taking photos outside of U.S. land ports of entry,” the San Diego Union-Tribune reports, “but local activists say new signage at the U.S.-Mexico border required under the terms of the agreement doesn’t go far enough to highlight the substantial change.”