Weekly U.S.-Mexico Border Update: Congress considers asylum curbs, Darién Gap reports, in-transit migration
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.
The U.S. Congress is considering the 2024 federal budget and a supplemental budget request for Ukraine, Israel, Gaza, and the U.S.-Mexico border. In exchange for approval—especially for the supplemental request—Republican legislators are demanding changes to border and migration policy, including a series of measures that would severely curtail the right to seek asylum in the United States. Democrats are opposed, but signal that they are willing to discuss some concessions on asylum, possibly including a higher standard that asylum seekers must meet in initial “credible fear” interviews.
The International Crisis Group and Human Rights Watch issued in-depth research reports about migration in the treacherous Darién Gap jungle region straddling Colombia and Panama, through which about half a million people have migrated so far this year. Both find stark gaps in government presence and a powerful role for organized crime, along with frequent and severe abuses of migrants passing through the zone. Recommendations recognize the complexity of the situation, and focus largely on efforts in source and transit countries to address the causes of migration, improved integration of migrants especially from Venezuela and Haiti, and better cooperation and coordination between states.
Brief updates look at Costa Rica’s and Panama’s policy of busing northbound migrants through their territory; at Nicaragua’s increasing use as an initial arrival point for migrants from Cuba, Haiti, and elsewhere; and at the situation of thousands of migrants stranded in Chiapas and Oaxaca in southern Mexico.
Two major budget items requiring near-term approval are before the U.S. Congress. To win their support, members of the Republican Party, which controls the House of Representatives and 49 of 100 Senate seats, are demanding a border security crackdown and vastly diminished access to the U.S. asylum system.
The budget measures are:
House Republicans had tried and failed to add border demands to the temporary measure that passed on September 30. They drew these demands from H.R. 2, the “Secure the Border Act of 2023,” which passed the House on May 11. As it would adopt measures extreme enough to block access to asylum for nearly all who seek it in the United States, H.R. 2 had passed without a single Democratic legislator’s vote.
It is not clear whether Republicans might seek to attach elements of H.R. 2 to the 2024 budget measure that must pass, in some form, by November 17. House Republican leadership is still developing its proposal.
Republicans have, however, prepared a list of border and migration demands as conditions for passage of the Biden administration’s Ukraine-Israel-border supplemental request. These demands draw heavily from H.R. 2.
Calling themselves the “Republican Working Group,” three Republican senators—Lindsey Graham (R-South Carolina), James Lankford (R-Oklahoma), and Tom Cotton (R-Arkansas)— issued a one-page document on November 6 summarizing the border and migration proposals that they demand be included in spending measures like the supplemental.
In addition to resumed border wall construction and more pay for Border Patrol agents, the Republicans’ proposal would add a series of limits to asylum that would make protection in the United States nearly impossible to attain for people arriving at the U.S.-Mexico border.
If this proposal were to become law, the Graham-Lankford-Cotton measures would deny asylum to a protection-seeking migrant unless:
If an asylum seeker clears those hurdles, the Republican senators’ proposal would require them to await their court hearings in Immigration and Customs Enforcement (ICE) detention—even if they are a parent with children—or while “remaining in Mexico,” as occurred during the Trump administration.
“If these proposals are implemented, more people who have no choice but to flee for their lives will be sent back to once again face persecution and harm. Some will die,” reads a November 9 letter to President Joe Biden from about 200 non-governmental organizations, including WOLA. “The harm will fall disproportionately on Black, Brown and Indigenous refugees who are already marginalized globally.”
Some top Senate Democrats rejected the Republican proposal.
Nonetheless, reports point to signs that Democrats may be prepared to give ground on some of these demands.
Sen. Murphy, “Republican Working Group” member Sen. Lankford, Sen. Michael Bennet (D-Colorado), and Sen. Kyrsten Sinema (I-Arizona) are “working through the weekend to forge a deal on asylum policy changes” that might be included in the supplemental budget bill, according to CBS News. Sinema voiced a view that while eligibility requirements for asylum seekers are valid, “the steps before migrants see a judge do need to be altered.”
Indeed, the item on which Democrats appear most open to negotiation is the Republican proposal for a tougher standard in asylum seekers’ initial credible fear interviews with asylum officers. That would lead to larger numbers of asylum seekers being deported before they leave custody.
It would also, however, risk thousands each year being sent back to likely death or serious harm because they were unable to assemble an ironclad case, within days of apprehension at the border, often while still in Customs and Border Protection (CBP) detention.
“One of the things the Republican colleagues have talked about in this hearing is adjustments to the asylum standard,” said Sen. Chris Murphy (D-Connecticut), chair of the Senate Appropriations Subcommittee on Homeland Security, at the November 8 hearing. “And I think that’s a legitimate conversation to have, but that will necessitate to the extent that there is more different work being done by USCIS [U.S. Citizenship and Immigration Services], some pretty significant new resources.”
Politico noted that changes to the credible fear standard alone are “unlikely” to “placate Republicans,” whose demands to curtail asylum go much farther.
In May, the Biden administration already placed a strong limit on the right to seek asylum, presumptively denying it to migrants who cross between ports of entry and fail to seek it in other countries through which they passed en route to the U.S. border. Advocates have questioned the legality of this “transit ban”; a federal district court judge struck it down in July, and the administration appealed the ruling. Officials defended their rule before the federal judiciary’s Ninth Circuit Court of Appeals in Pasadena, California on November 7.
Justice Department attorney Brian Boynton revealed that the Biden administration applied this rule to 57,700 asylum seekers between May 11, when it went into effect, and the end of September. In 12 percent of those cases, asylum seekers did manage to get past the ban by proving “exceptionally compelling circumstances.”
So far this year, about half a million people have migrated through the Darién Gap, a dangerous, roadless jungle region straddling Colombia and Panama. One quarter of these migrants have been women, and 22 percent have been children; of the children, about half are five years old or less.
Over the past week, two international non-governmental organizations issued major research reports about conditions along the Darién Gap route.
(WOLA staff have just returned from a two-week visit to three of Colombia’s border zones that explains the recent hiatus in “Border Update” publications. We were in the Darién region in late October, and have posted photos to WOLA’s Instagram account and on the personal site of WOLA researcher Adam Isacson. Expect reports and other products from this visit in coming weeks.)
The ICG and HRW reports are based on several fieldwork visits. They reveal that the Darién is likely to be a major migration corridor for some time, and that few good options exist, at least in the short term, for changing that. Proposals center on easing the humanitarian emergency and addressing the reasons people are fleeing.
Among some common findings:
Both reports conclude that solving this humanitarian crisis will not be easy. “Stopping individual migrants, however many of them, will not stop migration,” notes the ICG report, “but a policy geared exclusively toward protecting them could backfire by driving flows ever higher.”
Both organizations call for greater U.S. and international attention to the root causes, like insecurity and poor governance, driving migration from Venezuela, Ecuador, and Haiti, the top three countries of origin of Darién migrants. Both call for expanded pathways to allow protection-seeking migrants to travel legally, thus avoiding the Darién route. Both call for greater willingness and assistance for integration of migrants into countries of refuge throughout the Americas. And both call for greater cooperation and coordination between countries, especially Colombia and Panama, which are scarcely coordinating today. Both reports call on Colombia and Panama to maintain a greater state presence in the virtually ungoverned Darién region, and for that presence to include more than just security forces.
The ICG report explores, but does not specifically endorse, proposals to create “a controlled migration corridor” through the Darién “by land or sea.” This would be “a secure, supervised overland route where migrants would have access to medical care, shelter, food and clean water.” ICG acknowledges that “the concept is more aspirational than practicable at present, due largely to worries on the part of affected governments that such a corridor would be a magnet for even more migrants.”
HRW calls on Mexico and Central American governments to “ensure that their visa requirements do not effectively prevent access to asylum and push people to resort to dangerous crossings including the Darién Gap.” The organization calls for a greater diplomatic effort to welcome migrants throughout the region, including a possible new regional agreement that builds on the Cartagena Declaration of 1984 and specific temporary protected status for people fleeing Venezuela and Haiti. HRW recommends more “dignified migration centers and other shelters” in the Darién region, and more work to prevent and investigate abuses committed against migrants, especially sexual violence.
Once people emerge from the Darién Gap, Panama and Costa Rica facilitate their northward journey via buses, which migrants must pay to board. The New York Times reported from a new facility at Costa Rica’s border with Panama, where migrants who can pay the fare await buses that will whisk them to Nicaragua. Migrants who cannot pay the $30 per person bus fare, after already paying $60 per person to get from the Darién to Costa Rica, end up stranded in the Costa Rican “center,” in grim conditions.
This busing approach, the Times notes, “has raised alarms in the United States, which has called on its Latin American allies to deter people from making the treacherous journey north by encouraging them to apply for refugee status closer to their home countries.” Biden administration officials have voiced concerns to Costa Rica and Panama “behind closed doors.”
The Honduras-based publication ContraCorriente reported on the increasing number of charter planes—an average of 18 per day—now arriving in Nicaragua, often ferrying migrants from Cuba and Haiti. Nicaragua does not require visas of most international visitors; it eliminated the requirement for Cuban citizens in November 2021. Most of the time, Nicaraguan officials charge hefty entry fees ($150-200) to obtain a document granting a legal migratory status for a few days as migrants leave the country.
As a result, a growing number of people are avoiding the Darién route by flying to Nicaragua. On November 6 the assistant Secretary of State for Western Hemisphere Affairs, Brian Nichols, voiced concern “about reports of a dramatic increase in charter flights to Nicaragua that facilitate irregular migration from Cuba.”
On November 4, Mexico deported 105 Cuban citizens on a flight to Havana, and 112 more on a November 8 flight. Cuba’s Interior Ministry stated that 4,996 Cuban migrants have been returned to the island so far in 2023, a number that includes those whom U.S. authorities have interdicted at sea.
Emilio López of the University of Texas and the Autonomous University of Chihuahua told the Cuban independent media outlet El Toque that Cuban migrants in Mexico tend to have stronger social networks and are often aware of asylum opportunities in both the United States and Mexico.
In southern Mexico, several thousand migrants who have been stranded in the southern border-zone city of Tapachula, Chiapas began walking northward together on October 30. They followed the highway along Chiapas’s Pacific coast for about 25 miles to the town of Huixtla, where Mexican authorities maintain a checkpoint and migration center. Most remain there, camped along the highway and frequently blocking traffic.
The group, including many families, is demanding resolution to their migratory situation in Mexico, calling particularly for issuance of transit documents allowing them to continue their journey northward, something the U.S. government usually seeks to discourage.
A bit further north, a few thousand migrants, principally from Haiti, Venezuela, and African nations, arrived at once in towns in Oaxaca state. “At least 3,000 migrants of Haitian origin are refugees in the Migratory Mobility Center [a converted bus terminal] in Juchitán, Oaxaca, of a total of 6,000 migrants,” reported IstmoPress. “While waiting to collect or buy their tickets, they sleep on pieces of cardboard and in makeshift tents, and feed themselves with bread or fruit or with what they receive in aid.”