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.
Five sources told Reuters that the Biden administration is “poised” to roll out a procedure to perform “fast track” screenings of asylum seekers, while they remain in CBP custody, within days of their apprehension at the U.S.-Mexico border.
If migrants seeking asylum don’t get expelled under the Title 42 pandemic authority, they normally either go to Immigration and Customs Enforcement (ICE) detention, where they face an immigration judge usually within months, or (in nearly all cases if the asylum seeker is a child or a parent with children) they are released into the United States with dates to appear in immigration court.
The administration’s emerging plan, first indicated in a January 5 Department of Homeland Security (DHS) document, would seek to limit these releases by applying a procedure known as “expedited removal” to more asylum seekers. Those subject to expedited removal may never see an immigration judge. They undergo a preliminary screening with an asylum officer, called a “credible fear interview” (CFI). Those who fail this screening are removed from the United States.
Under the administration’s plan, credible fear interviews would happen within days of asylum seekers entering Customs and Border Protection (CBP) or Border Patrol custody, while they remain in those agencies’ detention facilities. Interviews in most cases would be remote, with asylum officers based elsewhere.
Advocates worry that the rushed procedure could end up with many “false negatives.” Asylum seekers subjected to this process would be exhausted from their flight to the border, disoriented from days in CBP’s jail-like holding cells, and unable to narrate their stories clearly to an asylum officer over a web-conferencing service, without meaningful access to counsel. The result could be more cases of vulnerable people removed to places where they face high probability of persecution, a human rights violation known as “refoulement.”
A January 26 NIJC explainer laid out the risks of applying expedited removal to asylum seekers in CBP custody:
This screening, called a Credible Fear Interview (CFI), is meant to set a “low bar” and usher asylum seekers towards full processing.
In practice, this low bar has become an insurmountable hurdle for many reasons. First, CBP frequently fails to refer people for CFIs. Second, even where CBP properly refers people, the CFI process is often dizzying for asylum seekers, who are frequently detained, need guidance on U.S. asylum law, and lack the time and language access they need to prepare for this consequential interview. Third, people placed in expedited removal rarely can secure legal counsel, who would properly guide them through this process and help them articulate their story to a Department of Homeland Security (DHS) asylum officer.
NIJC and other groups are calling the administration’s proposal a revival of Trump administration programs that President Biden had ended with a February 2, 2021 executive order. Starting in Border Patrol’s El Paso Sector in 2019, DHS implemented two parallel programs: Prompt Asylum Claim Review (PACR), applied to non-Mexicans, and the Humanitarian Asylum Review Process (HARP) for Mexicans. PACR and HARP led to the detention and rapid removal of over 5,000 asylum seekers, usually after a few days in CBP custody.
“PACR/HARP essentially flipped CFI pass rates on their head,” the NIJC explainer noted. “Instead of nearly 75% of asylum seekers passing their CFIs, passage rates plummeted to less than 25%.”
In addition to this rapid adjudication process, the Biden administration (as DHS announced on January 5) plans to use the federal government’s rule-making process to establish a very high barrier to future asylum seekers. Should this rule go into effect, asylum seekers who passed through third countries on their way to the U.S. border, and did not seek asylum there, “will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified.”
Such a rule, which critics call a “transit ban” or even just “asylum ban,” is of dubious legality. A January 31 Washington Post editorial explained:
The critics have a point: Current law says the United States must allow anyone on its territory to file for asylum and can require them to seek it only in a third nation with which the United States has a “safe country” agreement. (Canada is the only such country.)
Federal courts struck down a 2019 Trump administration transit asylum ban, as noted in a January 26 letter from 77 House and Senate Democrats to President Joe Biden.
The courts rightly rejected the Trump administration’s attempt to categorically end asylum when he similarly required asylum seekers to seek asylum in transit countries. Specifically, the Ninth Circuit Court of Appeals found that the Trump-Era Third Country Transit ban violated well-settled U.S. asylum laws that prohibit turning people away unless they have “firmly resettled” in a transit country, especially not if conditions in the transit country are not safe. At the time of this ruling, countries across the Western Hemisphere were unable to meet such requirements. There does not appear to be evidence to show that country conditions in transit countries have improved since the relevant appellate decision was rendered as to justify a new Third Country Transit bar.
The administration insists that this measure will be different from Trump’s because of still-undefined “exceptions” and its use of the rule-making process.
Beyond the proposed measures discussed above, the administration continues to use the Title 42 pandemic authority to expel Cuban, Haitian, and Nicaraguan asylum seekers from the border into Mexico, with Mexico’s acquiescence. (Mexico had already accepted expulsions of its own citizens and those of El Salvador, Guatemala, and Honduras, since March 2020; and citizens of Venezuela since October 2022.)
As noted in WOLA’s January 27 Border Update, administration officials continue to tout a drop in migrant arrivals at the border, a consequence of these nationalities’ inability to access asylum. “We’ve also seen a significant drop in the number of Cubans, Venezuelans, Nicaraguans and Haitians arriving irregularly in between our ports of entry at the southern border—nearly a 90% drop in those populations,” DHS Secretary Alejandro Mayorkas said during a visit to Miami. “This is the model that we have built and we will continue to build.”
Preliminary figures reported by the Washington Post on February 1 showed a 95 percent reduction in migration from those four countries during January, and a total of about 150,000 migrant encounters from all countries last month, down 40 percent from just over 250,000 in December. (Final official data may not be available for a few weeks.)
The director-general of the UN’s International Organization for Migration (IOM), Antonio Vitorino, said that the certainty of expulsion was reducing northward migration through Panama’s treacherous Darién Gap jungle region, through which many Venezuelan and Haitian migrants have passed. “There was a drop in the numbers of people that cross the Darien in the first three weeks of January with the new rules for Title 42 adopted by the U.S. administration,” Vitorino told Reuters.
As noted in WOLA’s January 27 Border Update, EFE reported that over 14,000 migrants had passed through the Darién Gap during the first three weeks of January, with Haiti (6,459), Ecuador (3,031), and Brazil (562) the most numerous nationalities. 14,000 migrants in 3 weeks is a pace of Darién Gap migration similar to November (16,632) and December (20,297).
The IOM’s Vitorino told Reuters that the number of migrants blocked and stranded in northern Mexico is causing a “serious humanitarian crisis,” adding, “Most of the 75 shelters IOM supports at the border are overcrowded. People need everything: shelter, food, water, warm clothes.”
At the Guardian, reporter Nina Lakhani described the experience of Cuban migrant Héctor González and his wife, who had entered Border Patrol custody in Eagle Pass, Texas.
González was driven 500 miles south-west to the state of Durango with around 40 others. After spending a night in detention, they were bussed another 200 miles south-east to neighboring Zacatecas state–and given a letter which said they had 20 days to leave Mexico.
Meanwhile, his wife was among a group dropped off 200 miles further south in San Miguel de Allende, while others were taken down to Acapulco, one of the most dangerous cities in the country.
A week later, González was among dozens of desperate people–including infants and children–from Cuba, Venezuela, Haiti, Ecuador, Angola and Afghanistan camped outside the headquarters of Mexico’s refugee agency (Comar) in the country’s capital, unsure what to do or where to go.
The Title 42 expulsion policy remains in place under court order, as the Supreme Court considers a lawsuit from Republican state governments to keep it in place, even though the Centers for Disease Control and Prevention (CDC) view Title 42 as no longer necessary. A new possible end date for Title 42 has emerged, however: May 11, 2023.
A “Statement of Administration Policy” on two House Republican-sponsored bills, published by the White House Office of Management and Budget, revealed that the Biden administration plans to end the COVID-19 national emergency and public health emergency on May 11, 2023. “The end of the public health emergency,” it continues, “will end the Title 42 policy at the border.” On Twitter, Aaron Reichlin-Melnick of the American Immigration Council concluded that though the emergency’s end “should” terminate Title 42 despite ongoing litigation, “I’m not counting out the possibility that some cockamamie legal theory keeps Title 42 in effect even past May 11.”
The Biden administration accompanied Title 42 expansion with an alternate pathway for up to 30,000 migrants per month from Cuba, Haiti, Nicaragua, or Venezuela. Those with passports and a willing sponsor in the United States—very high bars for poorer, less-connected asylum seekers—could apply from outside the United States for a “humanitarian parole” status, which would allow them to fly to the United States and remain for up to two years under the program (though all, once in the United States, could apply for asylum and, if Cuban, apply for further adjustment of immigration status).
While this status includes work authorization, a Foreign Policy column by three Washington-based think tank immigration experts pointed out that “they must apply for an Employment Authorization Document (EAD) from U.S. Citizenship and Immigration Services—a process with a yearlong backlog.”
On January 27, CNN’s Priscilla Álvarez tweeted that the new program had approved the humanitarian parole applications of “over 800 Nicaraguans, around 2,000 Haitians, and over 4,700 Cubans.” More than 1,700 individuals had arrived in the United States from those three countries. Álvarez did not report the number of Venezuelans, who have had access to a similar humanitarian parole program since October.
In addition to the requirement that applicants hold a passport, obtaining a willing sponsor is proving to be a big obstacle to parole. “Not all Cubans can (apply), for that you need a sponsor in the United States and not everyone can, there are even people who have relatives in the United States, but they are not in a position to sponsor another relative who is on the island,” Julio Ferrer of the Cuban human rights group Cubalex told Expediente Público.
U.S.-based Haitians are being overwhelmed with requests to sponsor family and friends in their country of origin, where the government is in a state of semi-collapse, Reuters reported. A Haitian-American social worker in south Florida, who is already sponsoring relatives, told the news agency that “he was inundated with calls almost immediately after” the Biden administration’s January 5 announcement of the parole program. “Many people unfortunately are not in a position to sponsor family members or friends back home, but they are receiving calls nonstop.”
WOLA’s January 27 Border Update covered 20 Republican-governed states’ lawsuit, filed in a Texas federal court, to block the new humanitarian parole program. Late on January 26, the Justice Department filed a motion to transfer the case out of the Victoria, Texas-based division of the federal judiciary’s Fifth Circuit where plaintiffs filed it. In that division, the case has a near-100 percent chance of being decided by a conservative, Trump-appointed judge. “Because the parties and underlying facts have no connection to this District or Division and permitting Plaintiffs’ blatant forum shopping disserves the interests of justice,” the motion reads, “the Court should transfer the complaint to either the Austin Division of the Western District of Texas or the District Court for the District of Columbia.”
Asylum seekers blocked by Title 42, and unable to access the Biden administration’s new humanitarian parole procedures, have one narrow pathway to seeking protection in the United States. CBP has opened up a limited number of Title 42 exemptions for asylum seekers deemed “most vulnerable.” Criteria include physical or mental illness, disability, pregnancy, lack of safe housing or shelter in Mexico, threats or harm while in Mexico, or ages under 21 or over 70.
Since January 12, CBP has sought to manage this exemption process via a smartphone app, “CBP One.” (See WOLA’s January 13 and January 20 Border Updates for more background.)
A stream of media reports, however, points to problems—most of them fixable—with the app’s rollout:
Haitian asylum seekers have been hit by the facial recognition issues, and by the lack of a Creole version of the app. (CBP told AP that it plans to roll out a Creole version in February.) This threatens to undo some striking progress achieved with Haitian migrants under the Title 42 exemptions process’ earlier iteration, which depended on non-governmental organizations’ or attorneys’ recommendations to CBP of vulnerable asylum seekers.
By creating a pathway for Haitians to seek asylum at ports of entry, the program had all but eliminated unauthorized border crossings by Haitian migrants. Between June and December 2022, CBP processed 37,408 Haitians at ports of entry, while the number of Haitians whom Border Patrol encountered between the ports of entry plummeted 99.6 percent from May (7,762) to December (31).
The app may be narrowing or closing that pathway for Haitians. In Matamoros, Mexico, across from Brownsville, Texas, Felicia Rangel-Samponaro of the Sidewalk School, a humanitarian group, told AP that “she counted 10 Black people among 270 admitted” on January 27. In the past, about 80 percent of migrants admitted to seek asylum in the area were Haitian.
Media reports are documenting problems with CBP One border-wide.