Weekly U.S.-Mexico Border Update: Supreme Court prolongs Title 42 and Biden expands it, Arizona “container wall” goes down
by
Adam Isacson
Adam Isacson
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.
While on a January 4 visit to Kentucky, President Joe Biden told reporters that he plans to visit the U.S.-Mexico border before a January 9-10 meeting in Mexico City with the leaders of Canada and Mexico. Asked what he would like to see when he visits, Biden responded, “Peace and security. No, I’m going to see what’s going on. I’m going to be making a speech tomorrow on border security, and you’ll hear more about it tomorrow.”
Biden will visit El Paso, Texas. Of the nine sectors into which the U.S. Border Patrol divides the U.S.-Mexico border, the El Paso sector led all others in migrant arrivals in October and November. (December data are not yet available.)
In a January 5 speech, Biden rolled out dramatic expansions of both a “humanitarian parole” procedure for citizens of Cuba, Haiti, Nicaragua, and Venezuela, and of expulsions of those countries’ citizens from the border back into Mexico under the still-in-force Title 42 pandemic authority. These are explained in documents from the Department of Homeland Security (DHS) and the White House, and in Federal Register entries laying out the parole process for Cubans, Haitians, Nicaraguans, and Venezuelans.
The administration will model its program for asylum-seeking migrants from Cuba, Nicaragua, and Haiti on a program applied to Venezuelan migrants since October. The Venezuela policy led to a sharp reduction in arrivals of Venezuelan asylum seekers at the border and afforded several thousand an opportunity to obtain a temporary documented status in the United States. But it has also left thousands more stranded and vulnerable inside Mexico and elsewhere along the migration route from South America.
On October 12, the administration offered a two-year humanitarian parole status in the United States, with a work permit, to up to 24,000 Venezuelan migrants who applied online, had valid or recently expired passports, and had someone inside the United States willing to sponsor them. Once approved for parole, Venezuelans are able to fly to the United States.
If encountered at the U.S.-Mexico border, however, Venezuelan migrants are subject to immediate expulsion back to Mexico—with Mexico’s full agreement—under the Title 42 pandemic authority, recently prolonged by the U.S. Supreme Court (see this update’s next section). The expulsions occur regardless of migrants’ expressed need to apply for asylum.
The October 12 decision made Venezuela the fifth nationality of migrants whose Title 42 expulsions Mexico accepted across the land border (in addition to those from Mexico, El Salvador, Guatemala, and Honduras). It led Title 42 expulsions of Venezuelans to jump from 87 in September 2022 to 6,411 in October and 5,298 in November. It contributed to a drop in encounters with Venezuelan migrants from 33,804 in September to 7,931 in November. And it caused migrant shelters and encampments in Mexican border cities to fill with thousands of Venezuelan migrants who suddenly had nowhere to go.
On January 5, President Biden announced that Mexico will accept land-border Title 42 expulsions of three more nationalities: Cubans, Nicaraguans, and Haitians, for a total of eight nationalities subject to land-border expulsion. Mexico will allow up to 30,000 expulsions per month of these three countries’ citizens and Venezuelans.
That will come with an expansion of the humanitarian parole program for up to 30,000 citizens per month from these countries and from Venezuela. (November 2022 migrant encounters from those four countries totaled 82,286.) Only citizens from those countries with U.S. sponsors and passports will qualify for these 30,000 monthly humanitarian parole spots.
As the expanded Title 42 expulsions represent a new block to the legal right to seek asylum in the United States, human rights advocates had responded with alarm to a December 28 revelation, in a story broken by Reuters, that it might happen. “The Biden-Harris administration seems intent on doubling down on President Trump’s xenophobia and cruelty,” read a December 29 statement from the #WelcomeWithDignity campaign. “This move would go far beyond what any court has required, dispelling any pretense that this administration is interested in turning the page,” said Melissa Crow of the Center for Gender and Refugee Studies. That day, staff at the Nogales-based Kino Border Initiative reported the arrival of seven expelled Nicaraguans at its shelter on the Mexican side of the border.
A January 5 WOLA statement voiced dismay “that in its eagerness to reduce the number of migrants arriving at the United States’ border to seek protection, the Biden administration has again negotiated with Mexico the expansion of a program that a U.S. federal judge had already ruled ‘arbitrarily and capriciously’ violates U.S. law, and has no basis in public health.”
In addition to the humanitarian parole program and the Title 42 expansion, the administration announced its intention to step up “expedited removals,” under regular immigration law, of migrants apprehended at the border who are not asylum seekers and who cannot easily be expelled under Title 42.
The administration’s announcement also foresees a new rule subjecting asylum seekers to “a rebuttable presumption of asylum ineligibility,” with to-be-determined exceptions, if they passed through third countries en route to the border and did not seek asylum in those countries. The Trump administration sought to implement a similar, though perhaps more stringent, “transit ban” on asylum seekers in 2019, but a federal court struck it down in 2020.
This Title 42 authority’s expansion is only possible because the pandemic measure did not expire on December 21, as a federal district court judge had ordered on November 15. On December 27, following a several-day administrative stay, the Supreme Court’s justices handed down a 5-4 ruling ordering that Title 42 remain in place while the high court decides whether a group of 19 Republican state attorneys-general may challenge the November 15 lower-court decision.
As a result, even if the Supreme Court eventually sides with the Biden administration and allows Title 42 to end, “the Court is unlikely to lift its order extending this Trump-era program until June,” legal analyst Ian Millhiser explained at Vox.
The decision is the latest in a long series of legal maneuvers and policy decisions that appear likely to keep the pandemic expulsion order in place for at least a year beyond May 23, 2022, when the Centers for Disease Control and Prevention (CDC) had determined that public health no longer required it. (See the “Timeline of major Title 42 developments” box below.)
Though Title 42 is a public health statute, the Republican-led states’ legal arguments do not emphasize health concerns. Their main position is that “the failure to grant a stay will cause a crisis of unprecedented proportions at the border,” citing a possible short-term jump in migrant arrivals once the effective ban on asylum-seekers comes to an end. “Republicans made no attempt to justify Title 42, a public health measure, on public health grounds,” reads a December 28 Washington Post editorial. “Yet… the Supreme Court ignored all that, acting more as lawmakers than as judges.”
Justice Neil Gorsuch, the one Republican appointee to side with the Supreme Court’s three Democratic-nominated justices, echoed this concern in a written dissent accompanying the Court’s decision. The states “do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed,” Gorsuch observed. “The current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
Title 42 “is an easy way for public officials to fix in their mind immigration without doing the hard work,” Kyle McGowan, the CDC chief of staff during Donald J. Trump’s administration, told the New York Times. “It’s just a Band-Aid. No, I don’t believe at this point it has anything to do with public health.”
Critics, and analyses by the New York Times, Washington Post, and CBS News, also pointed out that Title 42 has not reduced arrivals of undocumented migrants to the U.S.-Mexico border. Encounters with single adult migrants, routinely well under 30,000 per month between 2014 and the pandemic’s outset, now routinely exceed 140,000 per month (including many repeat encounters). Because Mexico cannot take land-border expulsions of all nationalities, and because some nations’ migrants are more costly or diplomatically impossible to expel by air, Title 42 was applied to 29 percent of all migrants encountered at the U.S.-Mexico border in November 2022.
The pandemic order’s imminent suspension, and its sudden reversal, have increased disorder in U.S. and Mexican border cities. Thousands of Venezuelan migrants had been stranded in Ciudad Juárez, Mexico, awaiting the policy’s December 21 expiration, some of them in squalid encampments.
Upon news of the Supreme Court’s prolongation, many made the desperate decision to cross the border anyway into El Paso, Texas, avoiding Border Patrol apprehension and inspection. Hundreds of homeless migrants who had never been in U.S. custody began congregating in south El Paso, near downtown, where Border Patrol has begun apprehending them, and presumably expelling them.
In Mexican border cities, aid workers warn of “chaos” if Title 42 ends up sending more nationalities back across the land border. A CNN overview estimated that “at least 22,000 migrants are sleeping in shelters, on the streets and in makeshift encampments across the border cities of Tijuana, Reynosa and Matamoros,” including 8,000 in Reynosa, 9,000 in Tijuana (about 60 percent of them displaced Mexicans), 5,000 (or 7,000) in Matamoros, and an unknown but certainly large number in Ciudad Juárez.
Title 42’s imminent end and sudden continuation contributed to the rapid formation of a new encampment of asylum-seeking migrants along the border in Matamoros, Tamaulipas, across from Brownsville, Texas. As many as 3,000 people are now living in a makeshift site with only two portable toilets, posing severe public health concerns, Border Report reported.
Matamoros had been the site of a large tent encampment during the Trump administration, a result of the “Remain in Mexico” policy that made non-Mexican migrants await their U.S. asylum hearing dates inside Mexico. (The encampment received a visit from Jill Biden just before Christmas 2019, who called it “heartbreaking.”) A second “makeshift tent city” has also formed upriver in Reynosa, Tamaulipas, the New York Times reported.
Enrique Valenzuela, director of the Chihuahua state government’s State Population Council (COESPO) in Ciudad Juárez, told the New York Times that “Title 42 has posed quite a challenge locally here, as people are sent back to this side of the border all the time.” He added, in the Times’s paraphrasing that the Supreme Court’s decision to prolong Title 42 would probably lead “the crush of people at the border” to “subside, only to increase in a couple of months.”
A makeshift camp has also formed this week near Mexico’s southern border with Guatemala, in the city of Tapachula, outside the Mexican government’s Siglo XXI migrant detention center, the largest such facility in the Americas.
As many as 5,000 migrants from Haiti, Venezuela, Cuba, Peru, Panama, and other Central American countries, most of them very recent arrivals in Tapachula, protested on January 2 outside the city’s offices of Mexico’s refugee agency, COMAR. They are demanding either faster attention to their requests for asylum in Mexico’s system, or documents allowing them to remain in Mexico long enough to transit to the U.S. border. Mexico issued thousands such documents, known as Multiple Migration Forms (FMMs), in 2022, but appears to have slowed or curtailed this practice in anticipation of Title 42’s end.
“Given the protests,” EFE reported, “COMAR officials advised the migrants that—for the moment—they will only attend to families with children, with the remaining adults having to wait their turn in line” to apply for asylum.
Despite the dangers that organized crime, kidnappers, and corrupt officials pose to migrants there, Mexico is now the world’s number-three recipient of asylum applications, the Associated Press noted. COMAR’s director, Andrés Ramírez, tweeted that 118,478 people applied for asylum in Mexico in 2022, the agency’s second-largest total after 2021 and 91 times what its workload was in 2013. Citizens of Honduras, Cuba, Haiti, and Venezuela all exceeded 10,000 applications.
Removal operations have begun in border zones where Arizona’s Republican governor, whose term ended on January 1, had placed miles of shipping containers along border wall gaps. Doug Ducey (R) had planned to spend $123 million stacking shipping containers at double height to fill unfinished or open areas of border fencing, most of it built during the Trump administration. Organized protesters, and then a U.S. Justice Department lawsuit, forced Ducey to remove the barrier. His successor, Katie Hobbs (D), is dismissing Ducey’s lawsuit challenging federal jurisdiction over border-adjacent land.
The Republican governor had first started stacking containers along gaps in the border wall near Yuma in August, at sites where thousands of asylum seeking migrants were arriving and turning themselves in to Border Patrol. The containers did not stop asylum seekers, who were already on U.S. soil and turned themselves in to Border Patrol elsewhere. In October, Ducey expanded the project to National Forest borderlands in southeast Arizona’s Cochise county, planning to fill in about 10 miles of border gaps with about 3,000 shipping containers.
As noted in WOLA’s December 16 Border Update, Arizona environmental defenders mobilized a series of protest actions that succeeded in blocking the heavy equipment that was clearing land and stacking containers. The Justice Department filed suit accusing the Arizona state government of trespassing on federal land, and threatening to bill the state for the containers’ removal, with a January 4 deadline.
In the end, AshBritt, the Arizona state government contractor, was able to build about three miles of the Cochise County project. Gov. Ducey’s administration spent about $95 million of taxpayer money for its Cochise and Yuma projects, and the Arizona government will end up spending about $76 million to take the containers back down.
Gov. Ducey had filed suit disputing the federal government’s control of land along the borderline. The “Roosevelt Reservation,” an easement dating back to 1907, is the reason why most land along the border in California, Arizona, and New Mexico is federally owned—which eased the Trump administration’s border wall-building projects in those states. (In Texas, where most borderlands are in private hands, wall-building usually requires eminent domain seizures and court challenges.) Ducey had sought to undo that easement, but Gov. Hobbs has indicated that she will drop her predecessor’s suit. “It’s not our land to put things on,’’ she said.
As containers go down in Arizona, a few are going up in El Paso. Texas Gov. Greg Abbott (R), currently the only Republican border-state governor, ordered the Christmas Eve placement of 10 shipping containers along the Rio Grande in El Paso. Texas’s state government had placed similar short, single-layer rows of containers along the river in Eagle Pass about a year ago. “We had no optics on that,” El Paso Deputy City Manager Mario D’Agostino told reporters about the newly placed containers. “I don’t know who sent them out there.”
The week before, Gov. Abbott had ordered Texas National Guardsmen to respond to an increase in asylum seeking migration in El Paso (discussed in WOLA’s December 16 Border Update) by laying miles of concertina wire along the Rio Grande. The razor-sharp barrier does not prevent migrants from turning themselves in to U.S. authorities to seek asylum—they merely need to be standing on U.S. soil to do so. Nonetheless, a Texas National Guard spokeswoman credited the “visual deterrent” of concertina wire, rifle-toting soldiers, and parked Humvees with a late-December reduction in migrant encounters in El Paso.