A federal judge has vacated the Biden administration’s two-month-old rule restricting access to asylum for many migrants at the border. The rule, which puts asylum out of reach for migrants who don’t make an appointment or first seek it in another country en route, went into effect after the Title 42 policy’s termination. The ruling, in response to a lawsuit brought by several organizations, found that the so-called “transit ban” rule is contrary to existing law. Judge Jon Tigar stayed his own decision for 14 days, and the administration will appeal it.
Mexican authorities apprehended 58,097 migrants during June 2023. This breaks Mexico’s previous migrant apprehensions record by more than 11 percent. Venezuela was the number-one nationality of migrants encountered, but several other nationalities doubled from May to June. Along with data from Honduras and Panama, Mexico’s numbers point to a sharp increase in migration following Title 42’s termination, even as authorities on the U.S. side of the border encounter fewer migrants.
Fallout continues from a whistleblower’s revelation that police and National Guardsmen deployed to the border by Texas Gov. Greg Abbott (R) are being instructed to mistreat asylum-seeking migrants: telling them to swim across the river back to Mexico, denying them water amid extreme heat, and laying down concertina wire that is wounding many. Meanwhile the Department of Justice has filed suit to compel Texas to remove a “wall of buoys” in the middle of the river in Eagle Pass; Mexico has filed diplomatic protests; and Abbott’s deployed forces are arresting female migrants and employing mobile phone surveillance software.
THE FULL UPDATE:
District court strikes down Biden administration asylum rule
A federal court in California struck down the Biden administration’s two-month-old rule restricting access to asylum for many migrants. If courts take no further action to stay Oakland District Court Judge Jon Tigar’s ruling, the administration’s “Circumvention of Lawful Pathways” rule will be lifted by August 9.
The rule (a subject covered in numerous WOLA Border Updates, especially in March, April, and May) went into force on May 11, 2023, the day that the “Title 42” pandemic expulsions policy ended. It blocks access to asylum, with some exceptions, to all non-Mexican migrants who (a) come to the border between ports of entry (land border crossings), instead of making an appointment using Customs and Border Protection’s (CBP) “CBP One” smartphone app; and (b) did not try and fail to seek asylum in at least one other country along their route. People subjected to the rule are deported—and deported into Mexico if they are citizens of Cuba, Haiti, Nicaragua, or Venezuela—and banned from entry into the United States for five years.
Judge Tigar’s decision to strike down the rule resulted from a lawsuit ( East Bay Sanctuary Covenant v. Biden) brought by the American Civil Liberties Union, ACLU of Northern California, Center for Gender & Refugee Studies, and National Immigrant Justice Center, on behalf of East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center. Tigar had promised to issue a decision shortly after hearing arguments on July 19 (see WOLA’s July 21 Border Update).
In 2019, Judge Tigar had struck down a similar “transit ban” rule, when the Trump administration sought to ban asylum for migrants who failed to seek it elsewhere along the way. Though the Biden administration added more exceptions and sought to accompany its rule with alternative legal pathways, Tigar decided that the 2023 rule contravened existing law (especially Section 208 of the Immigration and Nationality Act) in similar ways.
According to the ruling:
The Biden administration’s rule is contrary to existing law, which specifically states that the right to asylum exists without regard to how a migrant arrived on U.S. soil. The “clear intent” of the law, Tigar’s decision adds, is that migrants are only expected to seek asylum in another country when it “actually presents a safe option.” Though the law allows the government to impose additional rules on asylum, those must be “consistent” with the law.
The rule is “arbitrary and capricious” because it relies on other legal pathways for migration to the United States, like “CBP One” appointments or humanitarian parole for four countries’ citizens, which are unavailable to many asylum seekers.
The rule is procedurally invalid because the administration gave the public only 30 days to submit comments. This, in Judge Tigar’s view, did not comply with the Administrative Procedure Act, which lays out the rulemaking process.
The July 25 decision echoes some of the arguments made in tens of thousands ofcomments that individuals and organizations, from human rights defenders to members of Congress to the UN Refugee Agency, submitted during the 30-day period, which ended on March 27 (WOLA linked to 167 comments, including its own, in its March 31 Border Update).
Some of what many commenters warned about was already coming to pass.
“The record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico,” Judge Tigar’s ruling noted. A July 12 report from Human Rights First documented several cases of grave harm done to migrants waiting to obtain CBP One appointments in Mexican border cities since the rule went into effect. According to a July 24 report from the National Immigration Project of the National Lawyers’ Guild and the Mexican organization Together & Free, asylum seekers without CBP One appointments are stranded in Mexican border cities, endangered by Mexican authorities, and unable to access U.S. ports of entry unless they are escorted by an advocate even when they have experienced violence and torture in Mexico.
As the National Immigrant Justice Center and the New York Times reported, asylum seekers placed in “expedited removal,” forced to defend their claims while in CBP’s jail-like holding facilities within days of apprehension, are failing their initial “credible fear” interviews at elevated rates (70 percent of the time in June 2023, compared to 26 percent in June 2019). Though the Department of Homeland Security (DHS) promised that migrants in CBP custody would have access to counsel, this rarely happens in practice. The Times observed:
Lawyers cannot meet with clients who are in the custody of Border Patrol. Or call them. Or leave messages for them. There is no system to find out where a client is being held. And the government sets the schedules for key meetings when a lawyer should be present and changes dates and times often without notification.
Judge Tigar acceded to a Biden administration request to stay his decision for 14 days, in order to allow the government to adjust. “We strongly disagree with today’s ruling,” a DHS statement read. The Department of Justice will appeal the ruling to the Ninth Circuit Court of Appeals—which upheld Tigar’s rulings during the Trump administration—and, probably, to the Supreme Court. There, the justices’ conservative majority could favor the administration, though it is impossible to predict an outcome.
Mexico’s migrant apprehensions broke records in June
According to the Mexican government’s Migration Policy Unit, the country’s authorities apprehended 58,097 migrants during June 2023. This breaks Mexico’s previous migrant apprehensions record by more than 11 percent (52,201, in October 2022).
Mexico encountered 45 percent more migrants in June than in May. That is an opposite mirror image of the U.S. government’s migrantencounters at the U.S.-Mexico border, which declined by 30 percent from May to June.
While the period following the Title 42 policy’s termination saw less migration on the U.S. side of the border, the opposite is happening in Mexico. Honduras and Panama, too, are seeing record or near-record migration. The New York Timesrevealed that 42,000 people had migrated through the Darién Gap region during the first 24 days of July, a pace that, if sustained, would make this the second-heaviest month ever for migration there. During the first 23 days of July, Honduras reported registering 32,701 “irregular” migrants transiting its territory. With a week to go, that already breaks Honduras’s single-month record (30,775 in October 2022).
32 percent of June’s apprehended migrants in Mexico (18,559) were citizens of Venezuela. 7 percent more Venezuelan citizens were apprehended in June than in May. Several other nationalities increased far more sharply from May to June: Cuba, Ecuador, Guatemala, Honduras, Kyrgyzstan, and Uzbekistan more than doubled, while Nicaragua more than tripled.
It is unusual to see migration increase sharply through countries to the south even as it declines on the U.S. side of the border. One reason may be stepped-up efforts by Mexican authorities, in the weeks following Title 42’s end, to block migrants and relocate them further south. Another reason may be asylum seekers’ increased adoption of the CBP One smartphone app to make appointments at land-border entries. With CBP now allowing about 1,450 appointments per day, many migrants may be seeking to reach areas in Mexico north of Mexico City, the geographic zone where the app functions, where they then wait weeks or months for their appointments.
Mexico experienced this record-breaking level of migration during a month marked by an extreme three-weekheat wave that killed at least 100 people, with temperatures reaching 120 degrees Fahrenheit in some areas.
Texas updates
Fallout continues over a whistleblowing Texas state trooper’s allegations, laid out in an internal email, that police and National Guardsmen participating in Gov. Greg Abbott’s (R) border-security operation are being ordered to carry out cruel treatment of migrants, many of them asylum seekers, who cross the Rio Grande and reach U.S. soil. (See WOLA’s July 21 Border Update.) Texas State Trooper Nicholas Wingate alleged that personnel are discouraged from providing water to migrants amid extreme heat, and are instructed to direct them to swim back across a dangerous river where drownings are frequent, while many are wounded by coils of concertina wire strung along the riverbank and in the water.
Media reports continue to corroborate Trooper Wingate’s account.
On June 20, reporters from Hearst Newspapers, which first published Wingate’s email, witnessed state troopers refusing to let groups of migrants through the razor wire, directing them “miles downstream, through deeper and more turbulent waters where the wire is laid so close to the banks that they can’t continue on land.” They witnessed parents forced to carry their children through chest-deep water.
Troopers turned down several migrants’ requests for water, “even though cases of bottled water were kept at many of the military-like outposts along the river.” A Texas Department of Public Safety (DPS) spokesman told Hearst, “we can’t just keep handing out water because what’s going to happen is, you’re going to continue to encourage them to come.” A six-months-pregnant migrant toldThe Guardian that Texas National Guardsmen refused her request for water, telling her “it was a crime to cross into the U.S. and that we should return to Mexico.” She and her husband “eventually spent the night on the Rio Grande riverbank.”
A Venezuelan migrant said his 5-year-old son’s leg was cut so deeply by Texas’s concertina wire that he needed stitches. “I asked an official for antibiotics, and he told me, ‘You brought him, not me.’ They said it wasn’t their problem,” according to Hearst Newspapers.
While much attention has gone to the 1,000-foot floating “wall of buoys” that Texas authorities have strung along the middle of the river in Eagle Pass (see WOLA’s July 14 Border Update), the concertina wire poses a more immediate risk of harm. In El Paso, EFE witnessed three men, three women, and two small children holding razor wire open with their bare hands, through two layers of wire, as they sought to reach the riverbank. Jay Root of the New York Timesshared a disturbing photo of a baby being passed through concertina wire in Eagle Pass, Texas, on July 20.
The federal Department of Justice sent a letter giving Gov. Abbott until July 24 to remove the line of buoys from the river in Eagle Pass. When Abbott refused, the Departmentfiled suit in U.S. District Court in the Western District of Texas. “This floating barrier poses threats to navigation and public safety and presents humanitarian concerns,” Associate Attorney General Vanita Gupta wrote. “Additionally, the presence of the floating barrier has prompted diplomatic protests by Mexico and risks damaging U.S. foreign policy.” The Justice Department’s complaint focuses on the buoys that Abbott ordered to be laid out in the river; it does not appear to address the state’s placement of concertina wire along the riverbank or its apparent orders to reject asylum seekers who have already reached U.S. soil.
87 House Democratic Representatives signed on to a letter, drafted by Rep. Joaquín Castro (D-Texas), calling on President Joe Biden to “immediately intervene to stop Governor Greg Abbott’s actions and, as appropriate, pursue legal action given the serious and credible allegations of harm to migrants, interference in the federal enforcement of immigration laws, and violations of treaty commitments with Mexico.”
Similarly, former Rep. and Senate and gubernatorial candidate Beto O’Rourke penned a New York Timescolumn calling on Biden to “order the immediate removal of the lethal razor wire and obstructions in the Rio Grande and ensure that Border Patrol are unimpeded by Texas Department of Public Safety officers—today.”
The head of the International Boundary and Water Commission, a 134-year-old binational body that manages the Rio Grande, warned that Gov. Abbott lacks a permit to erect a floating barrier in the river. “The other issue that we also have,” Marie-Elena Giner warned, “is that should we have a flood event, all of that infrastructure that’s there without a permit, may actually impact flooding and may actually cause more flooding, damage to the levees, damage to the ports, damage to our dams.”
Mexico’s government has already filed diplomatic protests about Gov. Abbott’s buoy wall. Foreign Relations Secretary Alicia Bárcenaclaimed that about 75 percent of the buoys—230 of 305 meters—have actually been placed on Mexico’s side of the river. (The borderline runs down the middle of the river.)
The walls, concertina wire, guardsmen, and police are part of a border deployment, “Operation Lone Star” (OLS), that Gov. Abbott launched in the spring of 2021 shortly after Joe Biden took office. OLS is expected to carry a price tag of $9.5 billion through 2025, reported the Wall Street Journal, which called it “an explicit challenge to the national government, which by law controls international borders and immigration enforcement.” The Journal’s analysis notes that OLS has not deterred migration. Though it is carried out most intensely in Border Patrol’s Del Rio Sector in mid-Texas, that sector was number one, of nine Border Patrol U.S.-Mexico border sectors, in migrant encounters in June 2023. Still, the New York Timesobserved, Gov. Abbott “has been testing the legal limits of what a state can do to enforce immigration law.”
Along with personnel deployments and putting more than 27,000 released asylum seekers on buses to Democratic Party-governed U.S. cities, OLS has jailed thousands of migrants on state charges of “trespassing.” A court had struck down this practice on grounds of discrimination, as troopers and guardsmen had been ordered to arrest only men. This month, the Texas Tribunereported, OLS began arresting women too, having cleared out a building at a jail in Edinburg, in south Texas’s Rio Grande Valley region.
Texas has also used Gov. Abbott’s “border security disaster” authority to purchase “Tangles,” a powerful phone-tracking software application produced by an Israeli company.The Interceptreported that this tool “offers its users a bounty of different tools for tracking people as they navigate both the internet and the real world, synthesizing social media posts, app activity, facial recognition, and phone tracking.”
Other news
The Intercept’s Ryan Devereaux and photographer Ash Ponders traveled to Border Patrol’s remote station in Ajo, Arizona, where they found “roughly 50 migrants confined in a chain-link pen” outdoors, in heat above 110 degrees Fahrenheit, “gathered under a carport-like structure, crowding themselves into a single, narrow strip of shade to escape the desert sun.”
Amid record heat, Border Patrol agents have recovered the remains of 96 people since October in the agency’s El Paso sector, a desert region that includes the westernmost corner of Texas and all of New Mexico.
Tom Cartwright of Witness at the Border pointed out that Immigration and Customs Enforcement (ICE) appears to have suspended its monthly deportation flight to Haiti, at a time when the U.S. embassy in Port-au-Prince is under a “stay in place” order. However, a small jet deported migrants back to Mauritania, “ranking in the top 3 of countries in modern slavery.”
DHS Secretary Alejandro Mayorkas fielded hostile questions—usually being interrupted before he could utter more than a few words—from Republican legislators at a July 26 oversight hearing of the House of Representatives’ Judiciary Committee, whose Republican-majority leadership favors impeaching the Secretary.
“In the first half of 2023, the Mexican Red Cross responded to an average of nearly 70 overdoses a month in Tijuana, mostly involving men between the ages of 19 and 41,” Al Jazeerareported.
The Mexican government’s National Urban Public Safety Survey found that 73% of residents of the border city of Nuevo Laredo, Tamaulipas “indicated a feeling of danger and of being victims of some illegal activity” during the April-June period, up from 55 percent in January-March. Further downriver in Reynosa, Tamaulipas, the result was worse: 84 percent reporting insecurity, up from 73 percent at the beginning of the year. Both rates were among the highest in the country.
“In May 2022, DHS started collecting use of force data from its law enforcement agencies,” reads a new report from the Government Accountability Office, the auditing arm of the U.S. Congress. “But the agencies sometimes included multiple uses of force in a single report or reported them as a single incident—thereby undercounting DHS officers’ actual uses of force. Also, DHS hasn’t developed a plan for how it will analyze use of force data.”
According to Doctors Without Borders data reported by Spain’s El País, “so far in 2023, cases of sexual violence against migrant women have been on the rise” in Panama’s Darién Gap region, through which nearly 200,000 people migrated between January and June. “In all of 2022, the NGO attended 172 victims, and in only seven months of this year they have already registered 174, not to mention that underreporting of such events can be abysmal.”
During the first three months of 2023, 30,250 citizens of Venezuela migrated north through the Darién Gap, but a much larger number, 51,838, went south into Brazil, according to a report in the U.S. Southern Command online publication Diálogo.
Mexican President Andrés Manuel López Obrador met with a delegation of deputy-level U.S. officials in Mexico City to discuss efforts against northbound fentanyl trafficking and southbound firearms trafficking, as well as “progress in cooperation regarding regional migration.”
Religion Newsexamined ultraconservative Republican legislators’ attacks on, and efforts to cut federal funds to, Catholic Charities and other non-governmental groups that receive and assist migrants in U.S. border cities after their release from CBP custody.
About 800 largely Venezuelan migrants walked the 35 miles from Mexico’s border with Guatemala to the city of Tapachula, Chiapas. It was the third such mini-caravan in about ten days, Milenioreported. In the past, Mexican migration agents frequently detained migrants along these 35 miles; now, migrants say that agents are ignoring them or even offering to transport them in exchange for bribes.
Mexican authorities found 378 migrants in locked trailer containers in 3 separate incidents during a single week in the state of Veracruz, Border Reportreported. At least one trailer “was fitted with special side panels so as to prevent X-ray machines from detecting the migrants, who were wearing identification bracelets.”
Adam Isacson
