Weekly U.S.-Mexico Border Update: Asylum negotiations in Congress, migrant deaths, Texas loses in court
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.
This week’s update is late because, as we approached our regular publication deadline, staff were testifying in the House of Representatives. The next update will resume, as normal, on Friday (December 8).
A group of six or seven senators is negotiating Republican demands for tighter border and migration measures in exchange for aid to Ukraine, Israel and more in a Biden administration request for additional 2024 funds. The senators may be close to requiring asylum seekers to meet a much higher standard of fear in initial interviews at the border, a possibility that has progressive members of Congress and migrants’ rights advocates, including WOLA, on edge. Republicans are also demanding Democratic concessions on “safe third country” agreements and the presidential humanitarian parole authority.
Border Patrol’s El Paso Sector, which includes far west Texas and New Mexico, experienced a very sharp increase in the number of migrant remains recovered during fiscal 2023. The agency reported that 15 people died by drowning in the Rio Grande in its Del Rio, Texas Sector between October 1 and November 20. Medical providers in San Diego report a sharp increase in deaths and serious injuries from falls off of the border wall. On the Mexican side of the border, a mass kidnapping in Tamaulipas and cartel battles in Sonora underscored the dangers migrants face in the border zone.
The federal judiciary’s Fifth Circuit Court of Appeals has ordered Texas to remove the “buoy wall” that Gov. Greg Abbott (R) had ordered built in the middle of the Rio Grande in June near Eagle Pass. Abbott said he would appeal to the Supreme Court. A Fifth Circuit district court also blocked a Texas state government suit seeking to prohibit Border Patrol agents from cutting through the razor-sharp concertina wire that Texas authorities have strung along the river’s banks, in an effort to block asylum seekers.
(Update: on the morning of December 4, the Washington politics website Punchbowl News reported that the negotiations described below have broken down. Further talks were scheduled over the December 2-3 weekend but did not take place. According to the report, Senate Majority Leader Chuck Schumer [New York] may introduce a funding bill without any Republican border or migration demands as early as December 7, and Republicans may filibuster it.)
The Biden administration asked Congress in October for $106 billion in additional, “supplemental” 2024 funding for Ukraine, Israel, and border security and migration priorities. Legislators are now trying to negotiate a funding package that President Joe Biden would sign, but that can also pass both the Republican-controlled House of Representatives and a Senate where Republicans’ 49 votes are enough to stop a bill from advancing.
In exchange for their support, Republican senators and representatives are pushing Democrats to insert measures to make migration more difficult at the U.S.-Mexico border. Their initial proposal, drawing on a bill that passed the House in May with zero Democratic votes, would severely curb the ability to seek asylum at the border, along with other measures resembling policies that the Trump administration sought to implement. (See WOLA’s November 10 Border Update and November 14 analysis of what would happen if these measures were to become law.)
Taking part in the negotiation are six or seven mostly Republican senators who have been meeting regularly to find the outlines of a Ukraine aid for migration restriction deal. The group includes Democrats Chris Murphy (Connecticut) and Michael Bennet (Colorado), independent Kyrsten Sinema (Arizona), and Republicans James Lankford (Oklahoma), Thom Tillis (North Carolina), Tom Cotton (Arkansas) and at times Lindsey Graham (South Carolina).
According to media reports, the negotiators are focusing on three Republican demands: for raising standards that recently arrived asylum seekers would have to meet in initial credible-fear interviews; for requiring more asylum seekers to pursue protection in third countries; and for weakening the presidential authority—part of immigration law since the 1950s—that allows temporary grants of humanitarian parole to specific populations of migrants.
Some Democrats appear willing to budge on tightening credible fear standards. They appear more resistant, though, to requiring “safe third country” asylum arrangements or watering down humanitarian parole.
“Privately, administration officials have told Senate Republicans they are open to tougher asylum policies, a position that has emboldened the Republican negotiators while frustrating the Democratic lawmakers involved,” a “person familiar with the talks” told NBC News. The New York Times added that “the two sides have agreed in principle that migrants claiming a credible fear of persecution in their home countries must meet a higher bar to prove their concerns are well founded.”
Currently, a portion of asylum seekers encountered at the border are placed in “expedited removal” proceedings, during which they must defend their asylum claims before a U.S. Citizenship and Immigration Services (USCIS) asylum officer, who administers a “credible fear interview.” Asylum seekers participating in these interviews, which usually take place at Customs and Border Protection (CBP) facilities shortly after they enter the United States, may be deported if they cannot prove a “significant possibility” of persecution if returned to their home country. This initial screening standard “is seen roughly as any chance above 10 percent” of persecution, the Wall Street Journal explained.
“The idea is to raise the threshold during what’s known as the initial credible fear interview for asylum claims from a ‘significant possibility’ of success before an immigration judge to ‘more likely than not,’” a “reasonable fear” standard, sources involved in the senators’ talks told the Associated Press.
“Someone with a 50 percent chance of prevailing before a judge would still be ordered deported under this standard,” Dara Lind explained at the American Immigration Council’s blog. That threshold—not much lower than what asylum seekers would eventually have to meet before an immigration court judge—may be hard for many people with valid asylum claims to prove while in CBP custody, with little access to evidence or counsel, within days or a few weeks of arrival.
“The more stringent, adversarial, or time-constrained the interview is,” Lind observed, “the higher the risk that a migrant who could win their asylum case in front of an immigration [judge] will “fail” their interview anyway—and that they will be deported to persecution in violation of U.S. law.”
Still, “the Biden administration has signaled that it is willing to accept the G.O.P.’s demand for a more restrictive credible-fear standard” during expedited removal, officials involved in the talks told the New York Times. Under a rule it began implementing in May 2023, the administration is already applying this higher “reasonable fear” standard to some migrants who cross the U.S.-Mexico border between ports of entry without having first requested asylum in other countries along the way.
Lind pointed out that a percentage “in the 60s” of those subjected to this new standard of screening have been passing their interviews, down from over 80 percent before the rule went into effect. “This isn’t as significant a change as the Biden administration initially hoped (and claimed) the regulation would produce.”
While the Biden administration and some Democrats appear willing to give in on credible fear standards, they so far appear less likely to give ground on two other areas that have been occupying negotiators. Democrats are pushing back on Republican demands that asylum seekers be required to seek protection in “safe third countries” through which they passed, and that the humanitarian parole authority be weakened.
“In terms of the politics of these three issues, the Democrats involved in the talks seem resigned to accepting a revised asylum threshold, deeply hostile to meddling with parole authority and somewhere in the middle on safe third countries,” Ryan Lizza wrote at Politico.
Of these, Republican negotiators’ statements have most frequently raised the humanitarian parole program, which the Biden administration has used to give temporary documented status in the United States to citizens of Cuba, Haiti, Nicaragua, Ukraine, and Venezuela with passports and U.S.-based sponsors.
A parole program for Cubans, Haitians, Nicaraguans, and Venezuelans admits up to 30,000 people combined from these countries, allowing them to stay and work in the United States for two years. The administration launched it for Venezuelans in October 2022 and for all four countries in January 2023. As of October 2023, it had authorized the arrival of 269,744 people (7,243 Cubans, 107,697 Haitians, 48,840 Nicaraguans, and 77,021 Venezuelans).
Republican state governors are suing in federal court to stop the parole program, even though it has brought a sharp drop in the number of Cubans, Haitians, and Nicaraguans coming to the U.S.-Mexico border, especially between ports of entry. Because it requires applicants to have a passport, the measure has had less of an effect on migration from Venezuela (blue in the below chart), where passports are difficult to obtain.
“We need to have language on parole — so much so that I’m willing to deny moving on to any supplemental,” Sen. Tillis told the New York Times. The North Carolina senator had already told The Hill that “he would only sign off on a deal that could win the support of at least 25 Senate Republicans.”
Democrats have hinted that they might be more flexible on Republican demands if the bill could include other immigration reforms, like a codification of the Deferred Action for Childhood Arrivals (DACA) program that would protect several hundred thousand undocumented people who were brought to the United States as children. Republicans have not been receptive. “Democrats have not yet accepted that the negotiations are not border security for Democratic immigration priorities. It’s border security for Ukraine aid,” Sen. Cotton told the Associated Press.
The talks do not appear to be progressing; the Senate adjourned for the weekend with no deal. “We’re stuck,” Sen. Graham told NBC News. “Gun reform is a piece of cake compared to immigration,” Sen. Murphy said according to Bloomberg.
Even if the senators agree to something, it is hard to predict whether it would come to a vote in the House of Representatives, where most of the Republican majority’s caucus holds views on immigration similar in extremity to those of ex-president Donald Trump.
Meanwhile, a “supplemental” funding request comes with no hard deadline: if Congress doesn’t pass it, the government doesn’t shut down, but it may run out of money for priorities like aiding Ukraine and easing migrant processing at the border. “The lack of a true deadline could allow talks to extend into January,” The Hill observed.
The political realities around the migration concessions are difficult. Moderate Democrats and Biden administration officials are concerned by polls showing voters ranking border security and immigration very high among their top concerns (third behind “democracy” and “abortion” in a November NBC News poll). On the other hand, polls also show Biden’s lead over Donald Trump slipping among Latino voters.
There appears to be support for asylum concessions among Democratic senators who are up for election next year in states that often lean Republican, like Tammy Baldwin (Wisconsin), Sherrod Brown (Ohio), and Jon Tester (Montana). “I am one who thinks it [changes to asylum policy] doesn’t hurt,” Tester told Politico.
Moderate Republicans, meanwhile, feel pressure not to compromise with Democrats. Citing “Democratic sources familiar with the negotiations,” Washington Post columnist Greg Sargent found:
Republican demands began to shift soon after the New York Times reported that in a second Trump term, he would launch mass removals of millions of undocumented immigrants, gut asylum seeking almost entirely, and dramatically expand migrant detention in “giant camps.”
As one Senate Democratic source told me, Republicans started acting as though Trump and his immigration policy adviser Stephen Miller were “looking over their shoulders.”
Progressive and pro-immigration Democrats are urging the negotiators—none of whom are Latino—to remain firm on protecting asylum. Eleven Democratic senators, led by Alex Padilla (California), signed a statement opposing any deal that weakens asylum and doesn’t include “a clear path to legalization for long-standing undocumented immigrants.” Rep. Nanette Barragán, chairwoman of the Congressional Hispanic Caucus, urged Democratic senators to “hold the line” on asylum and parole.
In a November 28 America’s Voice-led press call and a November 29 joint statement from members of the Welcome With Dignity Campaign, including WOLA—among many other declarations—immigrants’ rights groups voiced strong opposition to any deal that would weaken asylum, parole, and other protections. On the right, the “Heritage Action” organization opposed any deal that does not include the full Republican agenda that passed the House on a party-line vote in May.
Reports from at least five regions along the border highlighted the persistent danger of migrating to the United States.
Two courts within the federal judiciary’s Fifth Circuit dealt setbacks to the Texas state government’s controversial placement of physical barriers to block asylum seekers’ access to U.S. soil along the Rio Grande. The circuit’s court of appeals ordered Gov. Greg Abbott (R) to remove a “buoy wall” installed in the middle of the river near Eagle Pass in June. A district court judge upheld Border Patrol agents’ ability to cut through razor-sharp concertina wire that Texas authorities have placed along the riverbank.
With a 2-1 ruling, the Fifth Circuit Court of Appeals upheld a district judge’s September order that Texas remove the “buoy wall,” a 1,000-foot chain of four-foot floating spheres with discs of serrated metal in between, anchored by concrete blocks. The buoys, they determined, violate an 1899 law preventing states from interfering with a navigable river without federal permission.
The dissenting judge, a Trump appointee, agreed with Texas’s argument that the river is not navigable near Eagle Pass. He was not convinced, though, by Texas’s argument that the measure sought to respond to an “invasion” or that the barrier has saved lies or forced migrants to cross at ports of entry.
In fact, as noted in this update’s previous section, Border Patrol’s Del Rio Sector, which includes Eagle Pass, counted an average of two migrant drownings per week between October and mid-November. Asylum seekers are crossing in such great numbers in Del Rio— second among Border Patrol’s nine sectors for most migrant apprehensions in October—that CBP has temporarily closed one of the two border bridges into Eagle Pass in order to free up personnel to help Border Patrol process people. It is hard to argue that the infrastructure in Eagle Pass is deterring migration.
Gov. Abbott, a vocal critic of President Biden’s border and migration policies, must now stop work on the buoy wall and move it to the riverbank. Abbott said he will seek a re-hearing before the full Fifth Circuit and appeal all the way up to the Supreme Court.
The appeals court ruling came two days after a Fifth Circuit district judge denied Texas’s demand that Border Patrol agents be prohibited from cutting through the 106 miles of concertina wire that the state’s police and national guard have coiled along the riverbank.
The wire is mainly placed a few feet from the river’s edge, blocking the progress of asylum seekers who are already on U.S. soil and, under federal law, may turn themselves in and request protection. Texas authorities are preventing them from doing that, refusing to move the sharp wire and leaving many stranded on the riverbank.
Border Patrol agents had been cutting or moving the wire at times in order to allow asylum seekers to enter, especially those with medical needs or other vulnerabilities. This angered Texas authorities; the November 28 decision in this case cited “at least one instance in which Texas DPS [Department of Public Safety] personnel threatened to criminally charge Border Patrol for cutting the wire.”
Texas filed suit in late October to stop Border Patrol from cutting the wire, and Del Rio District Judge Alia Moses prohibited agents from doing so while she decided the case. In the end, Moses ruled that Texas did not prove that the federal government had violated any law. Her ruling did, however, sharply criticize federal border policies that would make it necessary to process large numbers of migrants at the riverbank.
“Any rational observer could not help but wonder why the Defendants [the Biden administration] do not just allow migrants to access the country at a port of entry,” the judge wrote. “If agents are going to allow migrants to enter the country, and indeed facilitate their doing so, why make them undertake the dangerous task of crossing the river? Would it not be easier, and safer, to receive them at a port of entry?”
Texas is seeking to bring Moses’s decision to the Fifth Circuit Court of Appeals.
Elsewhere in the federal judiciary, in San Diego, the Ninth Circuit Court of Appeals heard arguments in a longstanding case seeking to end CBP’s practice of “metering,” or restricting asylum seekers’ access to U.S. soil at ports of entry. The case, Al Otro Lado v. Mayorkas, dating back to 2017, was brought by groups representing asylum seekers claiming harm because they were forced to wait in Mexico after CBP kept them from accessing U.S. soil to request protection.
In their latest quarterly report for the University of Texas’s Strauss Center, Stephanie Leutert and Caitlyn Yates found that while CBP admits 1,450 asylum seekers per day via the CBP One app, the agency is processing 85 individuals a day, approximately, as “walk-ups,” leading to a situation at some ports of entry that is identical to “metering.”