WOLA: Advocacy for Human Rights in the Americas
23 Feb 2023 | News

Weekly U.S.-Mexico Border Update: Transit Ban, CBP One, Cuban migration, Title 42

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 Biden administration released a draft rule that, if implemented, would deny asylum to many migrants who passed through other countries on their way to the U.S.-Mexico border, and did not first seek asylum in those countries. This is part of a controversial series of restrictions and alternative pathways that the administration expects to have in place after the Title 42 pandemic authority possibly expires on May 11.
  • One of those pathways includes use of the “CBP One” smartphone app to schedule asylum application appointments at land-border ports of entry. The app, functioning for over a month as a means to obtain Title 42 exemptions, continues to have problems, particularly a very small number of available appointments.
  • Application of Title 42 to Cuban migrants appears to have slowed their arrival at the U.S.-Mexico border, but it also appears to have caused a jump in maritime migration from Cuba to Florida.
  • The Supreme Court canceled oral arguments, scheduled for March 1, on Republican states’ effort to prevent Title 42 from terminating. The Court did not take down its order keeping the pandemic expulsion authority in place, though, so Title 42 remains active at least until May 11, 2023.


The asylum “transit ban” rule is out

On February 21 the Departments of Homeland Security and Justice took a step that the Biden administration had first previewed on January 5. The administration introduced a draft rule ( “Notice of Proposed Rulemaking”) that would deny the legal right to seek asylum to many migrants who passed through other countries on their way to the U.S.-Mexico border and did not first seek asylum in those countries.

The rule would partially shut down, to a historic and legally questionable extent, the right to seek asylum upon reaching U.S. soil, as laid out in Section 208 of the Immigration and Nationality Act.

This “transit ban” is part of an edifice of asylum limitations and alternative pathways that the Biden administration is building ahead of the Title 42 authority’s possible end on May 11, 2023, when the U.S. government’s COVID-19 public health emergency is to end. A February 17 WOLA commentary explains these new components.

  • The new limitations on asylum include the transit ban, the placement of asylum seekers into expedited removal proceedings, and discussions  with Mexico’s government to take other countries’ citizens as deportees. To what extent Mexico might do that is unclear—the draft rule refers only to Mexico’s “willingness to accept the return of these nationals”—and appears to depend on the U.S. government offering other legal pathways.
  • The pathways include two years of “humanitarian parole” in the United States, with work authorization, for some nationalities’ citizens who hold passports and have U.S.-based sponsors, along with use of a smartphone app, “CBP One,” to schedule appointments to request asylum at ports of entry (official border crossings).

The 153-page draft rule refers to a “rebuttable presumption of asylum ineligibility.” It has exceptions for some asylum seekers. The transit ban does not apply to:

  • Migrants who make an appointment ahead of time to apply for asylum at a port of entry (official border crossing) using new features on Customs and Border Protection’s (CBP) “CBP One” smartphone app.
  • Unaccompanied children.
  • Migrants who can prove that they face risk of a medical emergency, are a “victim of a severe form of trafficking in persons,” or face “an imminent and extreme threat to life or safety.”
  • Migrants who can demonstrate that the CBP One app’s appointment-scheduling function was “inaccessible or unusable.”
  • Migrants who, in an interview, can prove not just that they might qualify for asylum, but that they meet a higher standard of fear (“reasonable fear”).
  • Migrants who can prove that they tried and failed to receive asylum in Mexico and other countries through which they passed.

Despite these exceptions, this rule could potentially turn away thousands of asylum-seeking migrants during its first months of operation. At the American Immigration Council’s Immigration Impact site, Dara Lind walked through the Kafkaesque “12 Not-at-All-Easy Steps” through which asylum seekers would have to pass once the transit ban rule goes into effect.

Immigration reform and advocacy groups quickly raised objections. Thirty groups (including WOLA) added statements to a #WelcomeWithDignity campaign warning that “Biden’s Asylum Ban Will Return Refugees to Danger and Death.” The American Immigration Council called it “one of the most restrictive border control measures to date under any president.”

ACLU attorney Lee Gelernt, who has litigated several Trump and Biden administration efforts to curtail asylum, said, “We will sue if this administration goes through with a transit ban, just as we successfully sued over the Trump transit ban.” (A 2019 Trump-era ban, with even fewer exceptions and alternate pathways, was struck down in federal court in 2020.)

Congressional Democrats voiced quick opposition. Reps. Jerrold Nadler (D-New York, the ranking Democrat on the Judiciary Committee) and Pramila Jayapal (D-Washington, ranking Democrat on the Judiciary Subcommittee on Immigration) wrote, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.” Sens. Bob Menendez (D-New Jersey), Cory Booker (D-New Jersey), Ben Ray Luján (D-New Mexico), and Alex Padilla (D-California) wrote, “We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them.”

The proposed rule was published in the Federal Register on February 23. Members of the public have until March 27 to submit comments, to which the administration must respond before implementing it. The rule would go into effect the moment that the Title 42 authority expires, and last for two years, a period that could be extended.


CBP One issues persist

“When U.S. Customs and Border Protection introduced the CBP One mobile application two years ago,” the Washington Post’s Nick Miroff wrote on February 20, “it was largely geared toward commercial trucking companies trying to schedule cargo inspections.” Now, features on the app are essential to accessing the Biden administration’s humanitarian parole program for five nationalities, and to making appointments to request asylum at ports of entry, under a limited number of Title 42 exemptions.

Under the proposed transit ban rule, CBP One would become the main channel for initiating most asylum requests. Those who lack such appointments will be stopped outside border ports of entry before they can set foot on U.S. soil. As the number of appointments is limited by what CBP regards to be its capacity, the app may become a tool for “metering,” the practice of making protection-seeking migrants wait for weeks or even months for a limited number of appointments.

WOLA’s February 2 Border Update identified some serious issues with the app’s functionality. Reports over the last week indicate that these issues persist. “Screenshots reviewed by The New York Times read, ‘Time Slot Full,’ ‘System Error,’ or ‘Unable to Verify Location,’ even though the migrants were on the border where applicants must be to apply,” the paper reported on February 21. Department of Homeland Security (DHS) officials, talking to Miroff, disputed frequent claims that CBP One’s facial capture feature fails more often with darker-skinned subjects, revealing that 40 percent of last week’s applicants were Haitian.

The largest concern about the app continues to be the very small number of appointments available. Every morning at 9:00 AM Eastern—earlier elsewhere—asylum seekers must log into CBP One and enter data as quickly as possible in an effort to obtain an appointment in two weeks’ time. These spots fill up almost immediately, usually within a couple of minutes, forcing most asylum seekers to try again the following morning.

Reporting from Matamoros, Tamaulipas, the Rio Grande Valley Monitor’s Valerie González found families being forced to separate because the app offers fewer available spots than families have members, while CBP has stopped allowing adults to bring dependent children who don’t also have appointments. Priscilla Orta, an attorney working with Lawyers for Good Government, told González that on February 20, “about a dozen people crossed, but all of them had already sent their kids as unaccompanied minors without them by that point.”

On February 21 Sen. Edward Markey (D-Massachusetts) sent DHS a letter urging it to abandon use of the CBP One app, citing faults ranging from privacy concerns to software glitches. The app is “fine as a tool in the toolbox, but it cannot be the only access point to asylum,” Chelsea Sachau of the Tucson-based Florence Project, who provides legal aid to migrants in Nogales, told the Washington Post. “Asylum seekers have due-process rights, and reliance on this app alone will never be sufficient.”


As Title 42 slowed Cuban land migration, Cuban maritime migration accelerated

On January 6, in agreement with the government of Mexico, DHS began using Title 42 to expel into Mexico citizens of Cuba, Haiti, Nicaragua, and Venezuela encountered at the border, regardless of asylum needs.

For Cuban migrants, the numerical impact of that policy change has been striking.

  • In December, CBP had expelled 47 Cubans under Title 42. In January, with the new authority, CBP expelled 2,656 Cubans, a 5,551 percent increase in expulsions.
  • In December, CBP had encountered a record 42,653 Cuban citizens at the U.S.-Mexico border. In January, with the threat of expulsion looming, CBP encountered 6,433 Cubans, an 85 percent decrease in land-border migration.

Unlike the other nationalities subject to expulsion from the U.S.-Mexico border, Cuba is not far from the United States. The inability to migrate by land, the difficulty of accessing humanitarian parole for those lacking passports or sponsors, and historic levels of economic misery in Cuba have combined to cause an immediate spike in maritime migration across the Florida Straits.

  • In December, CBP’s Miami Field Office and Border Patrol’s Miami Sector encountered 1,245 Cuban migrants, most of whom had arrived by sea, often on rickety boats and rafts. In January, following Title 42 expansion, these Miami jurisdictions encountered 4,488 Cubans, a 260 percent increase in maritime migration.

Chart: "CBP U.S.-Mexico border encounters with citizens of Cuba"

	Jan-22	Feb-22	Mar-22	Apr-22	May-22	Jun-22	Jul-22	Aug-22	Sep-22	Oct-22	Nov-22	Dec-22	Jan-23
Cuba	9721	16557	32153	34839	25643	16172	20098	19060	26178	28847	34712	42653	6433

Chart: CBP Miami Area / Maritime encounters with citizens of Cuba

	Jan-22	Feb-22	Mar-22	Apr-22	May-22	Jun-22	Jul-22	Aug-22	Sep-22	Oct-22	Nov-22	Dec-22	Jan-23
Cuba	77	78	197	180	271	201	322	851	451	913	1093	1245	4488

As of late January, Cuban citizens made up more than 60 percent of the 7,500 Cubans, Haitians, and Nicaraguans approved for humanitarian parole under the Biden administration’s new program.

Cuban authorities meanwhile reported on February 16 that, so far in 2023, the island had received 2,266 returns of undocumented migrants “transferred to the country in 33 maritime and air operations from the United States, the Cayman Islands, the Bahamas, Mexico, and the Dominican Republic,” according to the Mexican daily Milenio.


Next steps for Title 42

On March 1, the U.S. Supreme Court had been set to hear oral arguments in several Republican-governed states’ effort to keep the Title 42 policy from ending. The story of this litigation is convoluted, but in broad strokes, the Republican states were seeking to overturn a Washington, DC federal judge’s November ruling that Title 42 should end because of its “arbitrary and capricious” blockage of asylum access.

On February 16, however, the Supreme Court took the oral arguments off of its calendar. The justices, however, did not reverse their December 27 decision that is keeping Title 42 in place for now. (See WOLA’s January 6 Border Update for an overview of that decision.)

“By taking the case off its oral argument calendars, while keeping its formal stay of the DC case in effect, the Supreme Court has ensured that Title 42 will remain in effect until at least May 11,” explains American Immigration Council Policy Director Aaron Reichlin-Melnick. That is the date when the U.S. government’s COVID-19 public health emergency—and thus Title 42, a public health authority—is scheduled to end.

Still, as Reichlin-Melnick points out, Republican-governed states are likely to pursue other arguments in their litigation to keep Title 42 in place even beyond the emergency. “Should the GOP States somehow succeed,” he adds, “the Supreme Court’s decision not to hear this case in March could make it even more difficult to end the policy. That’s because the Supreme Court would be unable to hear any oral arguments until fall 2023.”


Other news

  • Guatemala’s Agencia Ocote published a podcast about Venezuelan migrants stranded in the Central American country after passing through the dangers of Panama’s Darién Gap jungle region. They’re stranded, usually, because Guatemalan police shook them down and took all their money.
  • Meanwhile, Al Jazeera reported, last month Guatemalan authorities began implementing a new rule that requires charity-run migrant shelters to submit biometric information, including fingerprints, about all migrants who use their services.
  • “By the end of 2023,” a UNICEF official quoted by Reuters projected, “more than 300,000 migrants are set to have crossed the jungle” of the Darién Gap, where the Panamanian government counted 24,634 migrants in January, 2,337 of them Venezuelan citizens. Over 60,000 of this year’s projected Darién Gap migrant population could be minors.
  • In Ciudad Juárez, where the state government is funding major shelter expansions, the faith-based “Good Samaritan” shelter is building new facilities, while “authorities are trying to get hundreds of Venezuelans off the streets during cold nights and into shelters,” reported Border Report.
  • Spain’s El País covered a report by the Conflict Analysis Resource Center (CERAC), a Bogotá-based think tank, finding that an unprecedented 547,000 Colombians emigrated from their country in 2022, more than 1 percent of the country’s population. U.S. authorities encountered 164,954 Colombian citizens at the U.S.-Mexico border between January and December of last year.
  • “One-third of interviewees said they avoided going to the hospital out of fear of encountering Border Patrol,” according to results of an ACLU Texas survey of border residents. “Several respondents noted they were stopped by Border Patrol for looking suspicious or for driving with their headlights off during the day.”
  • A Bellingcat investigation, using videos and messages from militia members’ Telegram accounts, found that armed nationalist U.S. vigilante groups have been crossing into Mexican soil, where they have pointed weapons at migrants.
  • At Just Security, former DHS official and advocate Tom Jawetz discussed why the Biden administration once more asked Mexico for permission to restart the Remain in Mexico program, triggering a public refusal from the Mexican government on February 6.
  • Arizona Luminaria reported on “a ragtag collection of environmentalists, activists, and other Arizonans” that prevented the state’s last governor, Republican Doug Ducey, from completing