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.
Due to staff travel, WOLA will not publish a Weekly Border Update on August 12. The next update will appear on August 19.
Before it leaves for its August recess, the U.S. Senate—which is divided evenly between 50 Democrats (including Democrat-leaning independents) and 50 Republicans—will debate and possibly approve the “Inflation Reduction Act,” a large budget bill reflecting Biden administration priorities, especially health care and climate provisions. The Senate’s complicated rules allow budget-only measures like this one to pass with a simple majority, avoiding the 60-vote “filibuster” threshold that prevents much legislation from being considered.
The resulting process, called “reconciliation,” requires that the bill be open to amendments on unrelated topics during a grueling, many-hours-long procedure that usually drags on until the pre-dawn hours of the next day. Called “vote-a-rama,” it offers an opportunity for senators from the body’s large Republican minority to introduce amendments that could restrict migration, codify obstacles to the right to seek asylum, or otherwise harden the U.S.-Mexico border.
Sen. James Lankford (R-Oklahoma), the principal sponsor of a bill that would keep in place Title 42, the pandemic provision that eliminates the right to seek asylum at the border, told Roll Call on August 2 “that Republicans have some immigration-related amendments ‘in the queue,’ though he declined to provide specifics.” Sen. Lindsey Graham (R-South Carolina) added that “he thought border security would come up during the vote-a-rama process.”
Amendments could seek to enshrine into permanent law the Trump administration’s Remain in Mexico program, which forces asylum seekers to await their U.S. court dates inside Mexico, or Title 42, empowering U.S. Customs and Border Protection (CBP) to expel migrants indefinitely for public health reasons. Amendments could also seek to re-start construction of the Trump administration’s border wall, which Joe Biden halted when he assumed office in January 2021.
It is possible that some of these amendments to the spending bill could pass with a simple majority. They will have solid Republican support, and a small number of moderate and conservative Democrats, or Democrats facing tough re-election races in states where immigration is unpopular with swing voters, could end up voting for them as well. Several conservative or vulnerable Democrats are already co-sponsors of Lankford’s legislation that would keep Title 42 in place for months after the end of the U.S. COVID-19 emergency, which could last for years. (Currently Title 42, which the Centers for Disease Control and Prevention had intended to lift on May 23, remains in place by order of a federal judge in Louisiana.)
Should such amendments succeed, however, the larger “Inflation Reduction Act” bill—which, if it passes, would do so with the slimmest of majorities—could be in jeopardy. The anti-migrant measures could lead progressive and pro-immigration Democratic senators to vote against the entire bill. If hardline “poison pill” border and immigration provisions added during “vote-a-rama” cause even a few of those senators to vote “no,” the bill will fail.
At the Washington Post, columnist Greg Sargent called the likelihood of Republican immigration amendments a “ticking time bomb still threatening the big climate deal.” Sargent cited an e-mailed statement from Sen. Robert Menendez (D-New Jersey), who warned that “Adoption of amendments that would end access to asylum or expand Trump’s border wall…will put reconciliation at risk.” This, Sargent said, “is a not-so-veiled suggestion that adoption of such poison pills might imperil the whole climate deal.” Menendez repeated this language on Twitter.
WOLA, one of many groups to issue statements opposing harmful “vote-a-rama” amendments, warned that such provisions could usher in “a harmful regime that could cause years of real human suffering.” A letter from 286 U.S. non-governmental organizations, including WOLA, urged senators to oppose any legislation that might “end asylum at the border”; “harm immigrants’ health, economic well-being, or education”; or “further bloat enforcement or militarize the border.”
As of Thursday morning (August 4), the timetable is not clear. The Senate’s Democratic leadership is awaiting word from the body’s parliamentarian on how the rules of debate will proceed, while trying to secure the support of the remaining Democratic holdout, Sen. Kyrsten Sinema (D-Arizona). “Several Democratic senators” cited by Roll Call said they expect the “vote-a-rama” process to begin “as soon as this weekend.”
With a 5-4 decision on June 30, the Supreme Court upheld the Biden administration’s ability to cancel the “Remain in Mexico” policy, an initiative begun by the Trump administration in 2019 that sent over 70,000 asylum-seeking migrants back across the border into Mexico to await their U.S. immigration hearings. Evidence that the Biden administration is preparing to end the policy, however, is scarce.
President Joe Biden began shutting down Remain in Mexico, which he regarded as cruel and ineffective, after taking office in January 2021, but a Texas federal judge in August 2021 ordered the White House to restart it. The program re-launched in December; since then, about 5,000 more migrants have been sent back to Mexico to await their U.S. hearings. The Supreme Court’s recent ruling overruled that August 2021 decision, giving a green light to “re-terminate” Remain in Mexico.
A month later, though, Remain in Mexico continues to operate, sending dozens of migrants back to Mexico each day.
The administration says it is waiting for the Supreme Court to formally notify the Texas district court of its decision, and for the Texas court to lift its injunction requiring Remain in Mexico to operate. “The Supreme Court has to certify its June 30 opinion and then send it down the ladder to the Fifth Circuit Court of Appeals so that the Texas district court can formally end the injunction,” Time explained. “It may take time, potentially weeks, for that process to play out.”
The Supreme Court’s formal certification came on August 1. Still, advocates note that the administration has not taken advance steps to wind down Remain in Mexico or to stop sending asylum seekers back across the border. These could include closing down expensive “tent courts” near border ports of entry, or coordinating with shelters and humanitarian groups.
The Wall Street Journal revealed on July 29 that some White House National Security Council officials “have expressed hesitation” about ending the program.
With midterm congressional elections approaching and migration numbers easing a bit, some in the administration appear reluctant to take any steps that, in their view, could contribute to an increase in the number of migrants coming to the border. Unnamed Wall Street Journal sources worry that “publicity around ending the program could attract more people to cross the border illegally.”
Some also appear to hold the view that keeping Remain in Mexico going, at least at a minimal tempo, could forestall future litigation from Republican state attorneys-general, likely before Trump-appointed judges, that could force the program to restart again. Surprisingly, they also noted that Mexico “would prefer to see the program remain in place,” presumably out of a belief that it deters migration.
In response to these reports “that the Biden administration is still inexplicably debating whether to end Remain in Mexico,” the Welcome With Dignity Campaign put out a July 30 statement urging the program’s quick termination.
Officially, the Biden administration intends to end the program. A National Security Council spokesperson told the Journal that Remain in Mexico “was flawed, inhumane, and ineffective, and that is why this administration twice moved to terminate it and fought all the way to the Supreme Court to end it. We welcome the Supreme Court’s decision, and look forward to continuing our efforts to terminate [Remain in Mexico] once it is legally permissible to do so.”
When it will be “legally permissible” remains unclear. On August 3, after receiving the Supreme Court’s certification, the 5th Circuit Court of Appeals (a conservative-leaning jurisdiction covering Texas and Louisiana) refused a Department of Justice request to dissolve the original injunction ordering Remain in Mexico to restart. This delaying tactic could keep Remain in Mexico formally in place until September 26 or later, despite the Supreme Court’s ruling.
Five reports during the past week highlighted concerns about patterns of disrespect for human rights within CBP and its Border Patrol component.
1. An August 1 letter from the ACLU of Arizona, first covered by the Intercept and Arizona Luminaria, contends that Border Patrol agents in Yuma have confiscated at least 64 turbans from asylum seekers of the Sikh faith so far this year, including at least 50 in the past 2 months.
These, they argue, are “serious religious-freedom violations” against members of the world’s fifth-largest organized religion, most prevalent in India’s Punjab region. “Forcibly removing or targeting a Sikh’s turban or facial hair has symbolized denying that person the right to belong to the Sikh faith and is perceived by many as the most humiliating and hurtful physical and spiritual injury that can be inflicted upon a Sikh,” the letter notes.
CBP often throws away migrants’ personal belongings. The ACLU letter calls it a “universal, well-documented, and recurring practice by agents in the Yuma Border Patrol Sector of forcing apprehended migrants to discard nearly all of their personal property in advance of processing.” The Intercept adds: “Word has begun circulating among those seeking asylum in the Yuma area: Border Patrol is forcing everyone to throw away all personal belongings, except for cellphones, wallets, and travel documents.”
CBP officials told the Washington Post that “they have recently reminded Border Patrol supervisors that agency policies require agents to exercise care when handling ‘personal property items of a religious nature.’” The Border Patrol’s Tucson sector chief told advocates that agents “were being retrained,” according to the Intercept, and CBP Commissioner Chris Magnus said in a statement cited by the Post that the agency has opened an internal investigation.
2. The Dallas Morning News reported on July 28 that Border Patrol agents appear to be fabricating information on asylum seekers’ entry paperwork. It cites an egregious case of a two-year-old toddler whose form reads that he told agents he intends to travel to Dallas “to seek employment” and does not fear being returned to El Salvador.
Falsifying information on intake forms can mean swift deportation for protection-seeking migrants subject to the expedited removal process, a mechanism that the Biden administration is expanding. A report issued this week by Human Rights First warned that the Biden administration’s plans to expand use of expedited removal “would result in the illegal return of refugees to persecution and torture.”
3. Data obtained by the Cato Institute show that CBP personnel have used the Title 42 pandemic provision to expel thousands of families with toddlers and babies into Mexico in the post-midnight hours, despite safety risks. The statistics “show that as of May 31, CBP had used its Title 42 ‘health’ authority to expel 30,806 children ages 3 and under—with about 41 percent of these expulsions occurring at midnight or later.”
Under normal circumstances, CBP’s repatriation agreements with Mexico prohibit removals to Mexican border towns between 10:00 PM and 5:00 AM, except under emergency circumstances. Title 42 expulsions have occurred without regard to these repatriation restrictions. “The Biden Administration is actually expelling more children at night than even the Trump Administration did,” Cato notes.
4. The San Diego Union-Tribune reported on the 2019 case of a 9-year-old girl, a U.S. citizen holding a U.S. passport, who was detained for 33 hours at the San Ysidro port of entry by CBP officers convinced that she was her similarly aged Mexican cousin. The girl and her 14-year-old brother were crossing the border to attend school in March 2019 on a day when their mother could not accompany them because of an appointment for a surgical procedure.
A lawsuit, which a San Diego federal judge has allowed to move forward, alleges that CBP officers pressured the children to sign false statements stating that the girl was actually her cousin, threatening the boy with “jail” if he did not sign. Their mother, having canceled her surgery upon learning that her children were missing, reported to the port of entry only to have CBP officers tell her incorrectly that her children were not there. “CBP officers blamed Mrs. Medina for losing her children, and told her to leave and that they would contact her in two days,” threatening to detain her if she did not leave, the plaintiffs allege.
While CBP insists that the girl said that she was her cousin, Federal District Judge Gonzalo Curiel allowed the suit to go forward because CBP had deleted its recordings of its interactions with the children. (Curiel is the judge whom candidate Donald Trump notoriously called “Mexican” in 2016, when Curiel was considering a fraud case against him.)
5. A letter from the ACLU of New Mexico and ACLU of Texas calls for an investigation of a July 27 vehicle crash in Santa Teresa, New Mexico that killed two Mexican citizens and injured nine others. While Border Patrol was pursuing the vehicle before it crashed in the pre-dawn hours of the 27th, the agency reports that it had discontinued its chase, and that the driver lost control, flipping the vehicle.
Two Mexican citizen brothers, who were allegedly seeking to smuggle eleven migrants, are facing federal and state charges as a result of the incident; one said that the criminal organization that hired him had ordered him “not to stop if law enforcement attempted to pull him over.”
Border Patrol agents have exhibited a pattern of engaging in dangerous vehicle pursuits, at times in populated areas, with increasingly frequent fatalities. “There have already been 17 deaths this year due to Border Patrol vehicle pursuits, while there were 23 last year – an 11-fold increase since 2019,” the ACLU letter noted, urging CBP Commissioner Chris Magnus not to allow agents to employ Title 42 to expel any of the “victim-witnesses.”
Another Border Patrol vehicle pursuit ended in a crash, with no fatalities, on July 26 in Chula Vista, southeast of San Diego, when agents deployed a spike strip, popping a vehicle’s tires and causing its driver to veer off the road. In Texas, meanwhile, ACLU of Texas and the Texas Civil Rights Project issued a July 28 complaint before Texas state authorities about dangerous vehicle pursuits, calling on the Texas Department of Public Safety to halt the practice, which is linked to “30 deaths since the start of OLS, a startlingly high number.” The acronym “OLS” refers to Governor Greg Abbott’s (R) “Operation Lone Star,” a multi-billion-dollar border security campaign launched in March 2021.