WOLA: Advocacy for Human Rights in the Americas
9 Dec 2022 | News

Weekly U.S.-Mexico Border Update: Title 42’s final days?, Darién Gap migration slows, Mexico asylum

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 Title 42 pandemic expulsions authority is scheduled to terminate in less than two weeks, in accordance with a November court ruling. A Biden administration appeal will not change that date, but a challenge from Republican state governments might. The Senate may soon consider a still-unpublished bill that could prolong Title 42 for a year in exchange for giving legal status to “Dreamers.” Meanwhile, preparations for a post-Title 42 reality continue: shelters are anticipating increased populations, and the Biden administration is considering other means to block or limit asylum seekers, including something similar to the Trump-era “transit ban.”
    • Migration through Panama’s Darién Gap declined by 72 percent from October to November. The main reason appears to be an October expansion of Title 42 that made it impossible for citizens of Venezuela to pursue asylum in the United States. The number of Venezuelan citizens in the Darién dropped by 98 percent.
    • In November, Mexico’s asylum system received its largest monthly number of applications in a year. Applications from citizens of Venezuela, now denied the chance to seek protection in the United States, increased by 27 percent over October.

What’s next after Title 42, if it ends on December 21

It is now less than two weeks from December 21, when, in accordance with a November 15 court ruling, the Title 42 pandemic authority is to end. Title 42 has expelled about 2.5 million people without a chance to seek asylum since the Trump administration first implemented it in March 2020.

The administration appeals

On December 7, the Biden administration’s Justice Department informed D.C. District Judge Emmet Sullivan of its intent to appeal Sullivan’s November 15 ruling. The administration, however, is not seeking to prolong the current Title 42 order. The Justice Department filing does not ask for Judge Sullivan’s ruling to be paused: its intent appears to be to preserve the executive branch’s future ability to employ Title 42 to expel migrants for public health reasons.

The Justice Department stated that it would seek to put this case on hold while the U.S. Fifth Circuit Court of Appeals (Louisiana and Texas) considers its appeal of another case: a Louisiana district court’s decision that had prevented the Biden administration from ending Title 42 in May 2022. The Louisiana decision had taken issue with the administration’s process for terminating Title 42, which it had planned to end on May 23. Judge Sullivan’s decision struck down the use of Title 42 entirely.

Meanwhile, 19 Republican state governments are asking Judge Sullivan to suspend his ruling. If he does not do so—as appears likely—the states could seek to have the D.C. Circuit Court of Appeals and the Supreme Court hear the case. Should those higher courts agree to do so, and should they decide to stay (suspend) Judge Sullivan’s decision while appeals proceed, then Title 42 would remain in place for some time after December 21.

While the legal maneuvering proceeds, a Biden administration official told CBS News that the Department of Homeland Security (DHS) “continues to charge full speed ahead in preparing for Title 42 to lift on December 21.”

(For more background on this confusing narrative, see the timeline of major Title 42 developments at the end of this section.)

Possible legislation

On December 5, the Washington Post’s Greg Sargent revealed that Sen. Kyrsten Sinema (D-Arizona) and Sen. Thom Tillis (R-North Carolina) were negotiating a bipartisan bill to resolve the situation of “Dreamers”—up to 2 million undocumented people who were brought to the United States as children and know no life in any other country.

The current legislative session, which ends on December 31, could be the last chance to find a legal solution for Dreamers. The House of Representatives elected in November will have a slight Republican majority, and its leadership has indicated fierce opposition to any softening of immigration policy. The Obama administration executive order that had found a temporary solution for about 700,000 Dreamers (Deferred Action for Childhood Arrivals, DACA) was ruled illegal by a Texas judge in 2021, and the future of appeals leading to the conservative U.S. Supreme Court appears grim.

To entice Republicans to vote for a legal status for Dreamers, the Sinema-Tillis legislation, Sargent and others report, might:

    • increase resources for migrant processing,
    • hire more border agents,
    • increase prosecutions of improper border crossers,
    • quickly remove those who don’t qualify for asylum, and—most controversially—
    • extend Title 42 expulsions for at least another year.

Sen. Bob Menendez (D-New Jersey) has expressed “serious concerns” about the proposed bill, especially the proposal to prolong Title 42, which could cause hundreds of thousands more expulsions of migrants, many of them asylum seekers. A statement from several non-governmental groups (including WOLA) under the #WelcomeWithDignity campaign opposes “a shocking proposal to extend Title 42 for another year and additional proposals that would indefinitely curtail asylum rights.”

To move forward under Senate rules (the filibuster), this bill would require 60 senators to vote to end debate and allow a vote. Assuming that all 50 Democrats back this bill—far from certain, due to progressives’ discomfort with the Title 42 extension—Sinema and Tillis would need to convince 10 Republicans to allow it to come to a vote. That may prove very difficult, as Congress approaches the final two or three weeks of its session still needing to pass the entire 2023 federal budget and the Defense Department’s authorization.

On December 8, Sen. Tillis indicated that he and Sen. Sinema expect to finalize their bill language by Friday, December 9.

Preparations for an increase in migration

It is reasonable to expect protection-seeking migration to increase at the border after December 21, if Title 42 does truly end on that date. Data, presumably from CBP, leaked to Fox News point to 207,000 migrant encounters at the border in November, which is similar to October (it is not clear whether the number includes migrants encountered at ports of entry).

Shelters are preparing for a further increase. Sr. Norma Pimentel of Rio Grande Valley Catholic Charities told EFE that her organization’s respite center in McAllen, Texas is preparing to receive 1,000 to 2,000 migrants per day, up from a current level of about 300 per day. The Casa Alitas respite center in Tucson, Arizona, currently receiving about 350 people per day, anticipates an increase to up to 1,000 migrants per day, according to the same report. Many U.S. border-city respite centers are encouraging volunteers to sign up to help meet the likely demand for their services.

The Biden administration is preparing for a post-Title 42 future in a different way, considering other possible restrictions on the ability to seek asylum in the United States. CBS News, NBC News, Reuters, and others indicate that options under serious internal consideration include:

    • A fast-track rule refusing asylum to migrants who passed through other countries en route to the United States, but did not first apply for asylum and receive a denial in those countries. Such a “transit ban” would “effectively limit asylum protections to Mexicans and those who cross the United States’ southwestern border by sea,” the New York Times had reported in July 2019, when the Trump administration sought to implement a similar measure, which was struck down in court and made redundant, months later, by Title 42.
    • Accelerated asylum screenings while migrants are still in Border Patrol custody, which advocates argue raises strong due process concerns.
    • Using the tactic of “expedited removal” to quickly deport all migrants who do not specifically express a threat to their lives if returned.
    • Expanding some programs that allow people to access protection by applying online, without having to travel to the U.S.-Mexico border. These might function along the lines of an effort, launched in October, to offer humanitarian parole to up to 24,000 Venezuelans with passports and a U.S.-based sponsor. (Citing DHS, CNN’s Priscilla Alvarez tweeted that up to 14,000 Venezuelan applicants have been approved and over 5,900 have arrived in the United States.)

Two sources “familiar with internal discussions” at DHS told NBC News that “there is no ‘serious planning’ around any idea to limit asylum-seekers from coming into the U.S.”

Timeline of major Title 42 developments

    • March 2020: The Trump administration’s Centers for Disease Control and Prevention (CDC) imposed the measure, at the beginning of the COVID-19 pandemic, as U.S. borders closed to most travel. Citing the difficulty of detaining asylum seekers in congregate settings where viruses could spread, the order—drafted by hardline immigration opponents in the Trump White House, citing an obscure 1940s quarantine law—suspended the right to seek asylum at the U.S.-Mexico border. It ordered CBP to block asylum seekers from approaching ports of entry (official border crossings) and to quickly expel all migrants, regardless of protection needs, apprehended elsewhere. It was later revealed that CDC officials opposed this application of Title 42, but bent under intense political pressure. Mexico agreed to accept land-border expulsions of 4 countries’ citizens: its own, plus those of El Salvador, Guatemala, and Honduras.
    • November 2020: D.C. District Court Judge Emmet Sullivan ruled that Title 42 could not be used to expel unaccompanied child migrants. This decision was overturned on appeal in January 2021, just before Joe Biden’s inauguration, but the Biden administration has chosen not to expel non-Mexican unaccompanied children. The Trump administration had expelled unaccompanied kids 15,863 times between March and November 2020.
    • January 2021: The Biden administration kept the Title 42 measure in place. Of all Title 42 expulsions since March 2020, at least 81 percent have taken place since Joe Biden’s inauguration.
    • August 2021: After negotiations with the Biden administration broke down, the ACLU and other organizations resumed litigation challenging Title 42 in D.C. District Court.
    • September 2021: Following a large-scale arrival of Haitian migrants in Del Rio, Texas— notorious for disturbing images of Border Patrol agents on horseback charging at migrants—the Biden administration began a large-scale campaign of aerial expulsions back to Haiti. Witness at the Border would count 229 expulsion flights to Port-au-Prince and Cap-Haïtien between September 2021 and May 2022.
    • March 2022: The CDC decided that the pandemic’s reduced intensity made it possible to end Title 42 expulsions. The Biden administration set May 23, 2022 as Title 42’s termination date.
    • April 2022: Human Rights First reported tracking “at least 10,250 reports of murder, kidnapping, rape, torture and other violent attacks against migrants and asylum seekers blocked in or expelled to Mexico due to Title 42 since the Biden administration took office.”
    • May 2022: Mexico agreed to accept land-border expulsions of Cubans and Nicaraguans for a few weeks, until May 23.
    • May 2022: In response to a lawsuit brought by Republican state attorneys-general, Louisiana Federal District Court Judge Robert Summerhays issued a preliminary injunction blocking the Biden administration from lifting Title 42. The May 23 deadline was revoked, and expulsions continued.
    • August 2022: For the first time ever, migrants from Mexico, El Salvador, Guatemala, and Honduras comprised less than half of the population of migrants encountered at the U.S.-Mexico border. This was largely because migrants from these countries faced a very high probability of Title 42 expulsion, but citizens of all other countries (especially Cuba, Nicaragua, Venezuela, and Colombia) were more difficult for the U.S. government to expel; most were being released into the U.S. interior.
    • October 2022: The U.S. and Mexican governments announced that Mexico has agreed to accept land-border expulsions of citizens of Venezuela under Title 42.
    • November 2022: In the case (Huisha-Huisha vs. Mayorkas) brought by the ACLU and other organizations, Judge Emmet Sullivan struck down Title 42. He acceded to a Biden administration request for five weeks in which to wind down the policy. Republican state attorneys general filed a motion to allow them to intervene in the suit.


Denying asylum to Venezuelans causes a sharp drop in Venezuelan asylum seekers in Panama’s Darién Gap

Panama posted November data about migration through the treacherous Darién Gap jungles that straddle its border with Colombia. They show migration through the Darién plummeting 72 percent from October to November, led by a 98 percent drop in migration from Venezuela.

That fewer people risked crossing through the Darién Gap sounds like good news: hundreds each year die, are attacked, and suffer sexual violence along this 60-mile journey through ungoverned territory. The reason for the decline, though, is a sharp and sudden restriction in Venezuelan migrants’ ability to seek protection in the United States.

On October 12, the U.S. and Mexican governments announced that Venezuelan citizens encountered at the U.S.-Mexico border would be swiftly expelled back into Mexico, without affording them the chance to seek asylum, using Title 42. (As noted above, a U.S. federal judge struck down Title 42 on November 15, and the expulsions may stop by December 21.)

While Title 42’s denial of protection to Venezuelans may explain the decline in Darién Gap migration from that country, November also—for unclear reasons—saw declines in migration of citizens from Peru (-92%), Colombia (-87%), Cameroon (-44%), Afghanistan (-31%), the Dominican Republic (-30%), and Ecuador (-25%). Other countries increased, though: Nigeria (+56%), China (+38%), Haiti (+24%), India (+20), and Bangladesh (+18%).

Despite the November decline, 2022 is already the busiest year for migration in the history of the Darién Gap, which until recently was viewed as nearly impenetrable.


Mexico’s asylum system has its busiest month in a year

13,217 migrants applied for asylum in Mexico’s system in November 2022, the most in any month since November 2021, according to the Mexican government’s Refugee Aid Commission (COMAR). November’s asylum requests increased 15 percent over October, and 47 percent over September.

From October to November, COMAR received the largest increase in applications from citizens of Venezuela—27 percent—though the number of Venezuelan applicants was second to applications from citizens of Honduras. Venezuela’s requests almost certainly increased because, after the U.S. and Mexican governments began applying Title 42 and expelling Venezuelans into Mexico on October 12, Venezuelan citizens could no longer seek protection in the United States.

All nationalities that COMAR reports measured increases in asylum applications from October to November:

    • Venezuela: +27%
    • Haiti: +17%
    • Dominican Republic: +14%
    • Colombia: +12%
    • Honduras: +12%
    • El Salvador: +12%
    • Others: +12%
    • Brazil: +12%
    • Guatemala: +12%
    • Cuba: +11%
    • Nicaragua: +5%

The latest COMAR data are a reminder that the Americas’ ongoing migration event is not just a U.S.-Mexico border phenomenon. Beyond Mexico, Colombia and other South American nations are assimilating millions of Venezuelans. Costa Rica is doing the same with citizens of Nicaragua and other countries: 4 percent of people residing in Costa Rica have pending asylum applications.


Other links

    • During a week in mid-November, WOLA staff visited both sides of the U.S.-Mexico border, from El Paso and Ciudad Juárez, west through Tucson and Nogales, and on to Yuma and San Luis Río Colorado. In a new edition of WOLA’s podcast, four staff members narrate what they learned from shelter personnel, advocates, experts, service providers, and many migrants.
    • At Futuro Investigates, Julieta Martinelli, Roxanne Scott, and Maria Hinojosa presented an in-depth series of articles, narratives, and a podcast about the harm done to migrants, including many deaths in the desert, by Border Patrol’s nearly 30-year-old “prevention through deterrence” framework.
    • Spain’s El País reported on the Argentine Forensic Anthropology Team’s efforts to help identify some of the remains that have been found in Mexico and the U.S.
    • The latest monthly report from Witness at the Border counted 128 lateral removal flights of migrants, in which migrants are flown from one part of the border to another before being expelled or deported. This is nearly twice the recent monthly average, and it probably owes to many Venezuelans having Title 42 newly applied to them by expelling them in regions far from where they were encountered.
    • In the past month or two, Mexico again increased the number of soldiers, marines, and national guardsmen assigned to border and migration duties. The most recent count, as of November 21, was 31,777 individual military personnel. The numbers come from “security reports” periodically presented at President Andrés Manuel López Obrador’s morning press conferences, and uploaded to the Mexican Presidency’s website.
    • In Ciudad Juárez, Border Report reported, “Several armed men arrived in vehicles at the Tierra de Oro shelter in the Mexico 68 neighborhood shortly after 1 a.m. and knocked down a metal door with the back of a pickup. They took cellphones and money and lined up women and children separately from the men before apparently being scared off by a passing police car.”
    • Shootouts and other combat remain frequent in the border city of Nuevo Laredo, Tamaulipas, following the arrest of a top organized crime figure. InsightCrime reported on current criminal dynamics in the city.
    • In his last story for BuzzFeed before moving on to the Wall Street Journal, Adolfo Flores profiled San Diego defense attorneys who are challenging the statute making it a misdemeanor to cross the border between ports of entry. The law’s early 20th-century proponents used deeply racist arguments in favor of its passage, their research shows.
    • Arizona’s outgoing Republican state government continues to fill gaps in the border wall with stacked shipping containers on environmentally sensitive federal land. The National Forest Service stated that it has informed Arizona “that the presence of the containers is unlawful” in the Coronado National Forest. “Forest Service & DOJ declared construction illegal but are still nowhere to be seen,” journalist Russ McSpadden, who has closely covered the containers’ installation, noted on Twitter. At the Border Chronicle, Melissa del Bosque visited the new “container wall” and published a Q&A concluding that it “is worse than you can imagine.” The Arizona Republic also reported on the environmental harm the structure poses to endangered migratory species. “These animals need to be able to move to survive,” Emily Burns of the Sky Island Alliance told National Geographic.
    • The Electronic Frontier Foundation has posted and shared, under a Creative Commons Attribution 3.0 license, more than 65 photos of camera towers, aerostats, and other surveillance technologies deployed along the border.
    • The Inter-American Commission on Human Rights’ early November hearing about the 2010 homicide of Mexican citizen Anastasio Hernández Rojas, at the hands of border agents in San Diego, offers an opportunity to revisit the “ambiguous ‘objective reasonableness’ criterion” for agents’ use of force, “based on officers’ perception of fear rather than any real threat to their safety,” wrote Pedro Rios of the American Friends Service Committee at the San Diego Union-Tribune.
    • “Many of the thousands of migrants arrested on trespassing charges under Gov. Greg Abbott’s border security operation have been locked up in Texas prisons only after U.S. Border Patrol agents handed them over to state police,” according to an ACLU of Texas complaint reported by the Texas Tribune.
    • A Border Patrol agent died in the predawn hours of December 7 when his ATV struck a gate, fashioned from surplus border-wall bollards, along a dirt road in Mission, Texas.
    • Federal air marshals are rejecting mandatory three-week assignments to the border to assist CBP, reported Homeland Security Today.
    • The Biden administration on December 5 granted Temporary Protected Status (TPS) for more than 100,000 Haitians living in the United States who were in the country as of November 6, many of whom had first arrived at the U.S.-Mexico border.
    • U.S. Homeland Security, State Department, and White House officials met with counterparts in Mexico City on December 1 to discuss “progress on binational border crossing infrastructure modernization and joint border security operations.”
    • “More than 73,000 illegal immigrants evaded Border Patrol agents in November, according to new data seen by Fox News,” the conservative network reported, without indicating whose data it was citing.
    • The UN-backed Inter-Agency Coordination Platform for Refugees and Migrants from Venezuela (R4V), which comprises 228 organizations, is seeking $1.72 billion in 2023 to assist Venezuelan refugees throughout the Americas.
    • The Dominican Republic deports 750 Haitian citizens per day back across the two countries’ land border, a Dominican migration spokesman said.