WOLA: Advocacy for Human Rights in the Americas
26 Jan 2024 | News

Weekly U.S.-Mexico Border Update: Deadlock in Congress, Texas razor wire, Migration drop levels off

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.

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Republicans’ efforts to tie migration restrictions to Ukraine aid are sputtering in the Senate, as former president and likely Republican nominee Donald Trump has been calling conservative Republican senators and urging them to reject a deal. This is happening even after Democrats appear to have agreed to major curbs on asylum access, and after negotiators were voicing cautious optimism that legislative text might appear this week.

In a 5-4 ruling, the Supreme Court sided with the Biden administration and granted the federal Border Patrol permission to cut through razor-sharp concertina wire that Texas’s Republican-led state government has placed along the Rio Grande. The decision is limited in scope, not compelling Texas to do more than allow agents to cut or move wire. However, the state’s governor and some Republican legislators have invoked “invasion” rhetoric and even counseled ignoring the Supreme Court’s order.

Border Patrol appears to be apprehending 3,000 to 4,000 migrants per day border-wide, a sharp drop from an average of more than 8,000 per day in December. However, sector chiefs in Tucson and San Diego have reported increases following post-holiday lows. Migration levels in Honduras and Panama remain at their lowest in several months.



Republican divisions may undo spending deal that would have restricted asylum access

Republicans’ efforts to tie migration restrictions to Ukraine aid are sputtering in the Senate, as former president and likely Republican nominee Donald Trump has been calling conservative Republican senators and urging them to reject a deal.

In October, the Biden administration asked Congress for a $106 billion package of Ukraine and Israel aid, border spending, and other priorities, which Senate appropriators drafted as a $110.5 billion measure. Republicans have refused to support it, though, unless Democrats agree to change the law to limit access to asylum and perhaps other migration pathways.  (In the U.S. Senate, where Republicans hold 49 of 100 seats, it takes 60 votes to end debate and move most legislation to a vote.)

A small group of senators has been negotiating these demands since November. At The Hill, Rafael Bernal highlighted the absence of Congressional Hispanic Caucus members from those talks. Rights defenders and some Democratic legislators have sounded alarms about concessions that the negotiators may have already agreed on, including, reportedly:

  1. A new Title 42-like authority to expel asylum seekers on days of heavy migration, regardless of protection needs, with a rumored threshold of 5,000 migrant encounters per day to trigger expulsions—a number that conservative Republicans insist is too high.In any case, a measure like this would require Mexico to accept expelled migrants, as it did for citizens of seven countries during the COVID pandemic. A January 19 Human Rights Watch statement urged Mexico’s government to reject any agreement with the Biden administration that would send asylum seekers back across the border to potential harm.
  2. Tougher criteria asylum seekers must meet when the “expedited removal” process places them in “credible fear” screening interviews with asylum officers. (The Department of Homeland Security (DHS) applied this process to about 24,000 migrants at the border in November.)
  3. More detention of asylum seekers pending adjudication of their cases.

The agreement might also include some curbs on the 70-year-old presidential authority to grant humanitarian parole. This has been a major sticking point, though, as Democrats argue that parole has reduced pressure on the border by opening up one of very few legal pathways permitted by current immigration law. The Biden administration has paroled over 1 million migrants, including 422,000 people who came to ports of entry after securing appointments with the CBP One smartphone app; 340,000 citizens of Cuba, Haiti, Nicaragua, and Venezuela who were permitted to apply online; 176,000 beneficiaries of the “Uniting for Ukraine” policy; and 77,000 people who fled Afghanistan. The parole option has brought a 92 percent decrease in Border Patrol apprehensions of citizens of Cuba, Haiti, and Nicaragua.

The number of parolees is too large for Republicans like Sen. Lindsey Graham (R-South Carolina), a frequent participant in the negotiations, who continues to insist on reducing parole power. Coverage this week hinted that senators had agreed to some sort of curbs. “The emerging Senate deal seeks to reduce parole numbers by tightening immigration enforcement and speeding up processing,” the New York Times reported. “There are some changes that will be made in parole that I think will get at the abuse and misuse of it,” said Senate Minority Whip John Thune (R-South Dakota). CBS News reported that a compromise deal might exclude paroled people from applying for asylum, but official sources consulted by the Washington Post’s Greg Sargent denied that.

Senators on the Republican Party’s rightmost wing are arguing that these migration restriction measures don’t go far enough. Hardline Republican senators shouted at their more moderate colleagues during a lunch meeting on January 23, The Hill reported. They could scuttle a deal even before it goes to the Republican-majority House, where leaders are also likely to take a hard line.

Just a few days ago, negotiators were raising expectations that they might announce a deal this week—that most of what remained was to work with appropriators to gauge the cost of the new restrictions. As recently as Tuesday the 23rd, chief Republican negotiator Sen. James Lankford (R-Oklahoma) said it was possible that the negotiators might start sharing agreed-upon legislative text. Donald Trump, however, has become more strident in his calls to abandon a deal.

“Trump wants them to kill it because he doesn’t want Biden to have a victory,” a source “familiar with the tenuous negotiations” told the Huffington Post. “He told them he will fix the border when he is president… He said he only wants the perfect deal.” The change in prospects in the Senate is sharp, and indicates the sway that Trump holds over the Republican Party.

The impasse would leave current asylum laws and standards in place, even as it puts in doubt the administration’s ability to provide Ukraine with new assistance to repel Russia’s invasion. Senate Minority Leader Mitch McConnell (R-Kentucky), who favors Ukraine aid, hinted yesterday that he might favor standing down and de-linking migration restrictions from the Ukraine package: “The politics on this have changed.”

“In effectively backing away from the border-security-for-Ukraine construct that Hill Republicans clung to for the last few months, McConnell is acknowledging Trump’s continued stranglehold on the GOP,” wrote Jake Sherman and John Bresnahan at Punchbowl News. “Democrats will get to say they made huge concessions on parole and asylum during these talks, and Trump tanked it.”

Meanwhile, President Biden told reporters on January 19 that the border is not secure: “I haven’t believed that for the last 10 years, and I’ve said it for the last 10 years. Give me the money.” In prepared remarks, he added, “I’m ready to solve the problem. I really am. Massive changes. And I mean it sincerely.”


Texas state government fumes after Supreme Court allows federal agents to cut razor wire

In a brief 5-4 ruling, the Supreme Court sided with the Biden administration and granted the federal Border Patrol permission to cut through the spools of razor-sharp concertina wire that Texas’s Republican-led state government has placed along dozens of miles of border along the Rio Grande. Chief Justice John Roberts and Justice Amy Coney Barrett sided with the high court’s three Democratic appointees. It is the latest chapter in the Texas state government’s series of challenges to federal authority over border and migration policy under the U.S. Constitution.

In late October, Texas Gov. Greg Abbott (R) had banned federal agents from cutting the concertina wire, as they had been doing in order to access asylum seekers—who have the right to petition for protection once on U.S. soil—and others in distress along the riverbank. As of last August, Texas state police had treated 133 migrants for injuries caused by the concertina wire.

The Biden administration went to court. After a federal district judge sided with Border Patrol, the 5th Circuit allowed Texas’s ban on wire-cutting to remain in place while appeals proceeded, leading the Department of Justice to seek an emergency action from the Supreme Court. The case is ongoing, with arguments scheduled for February 7.

The January 22 Supreme Court ruling does not affect Texas’s January 10 banning of Border Patrol agents from a 50-acre riverfront park in Eagle Pass (see WOLA’s January 19, 2024 Border Update). Nor does it affect Texas’s placement of a string of buoys in the river in Eagle Pass, which remains while the 5th Circuit considers an appeal of its own earlier ruling ordering their removal. “Border Patrol is not planning to use the order as a green light to remove the razor wire barriers if they do not present an immediate hazard,” a “senior agency official” told the Washington Post.

“This is not over,” Gov. Abbott said after the Supreme Court issued its ruling, while other far-right legislators fumed. Some Republican politicians urged Texas to ignore the Court. “This opinion is unconscionable and Texas should ignore it on behalf of the [Border Patrol] agents who will be put in a worse position by the opinion and the Biden administration’s policies,” Rep. Chip Roy (R-Texas) posted on Twitter.

Though Rep. Roy chairs the House Judiciary Subcommittee on the Constitution, ignoring a judicial order would be nakedly unconstitutional. It’s not clear, though, what “ignoring” means in this case. Monday’s ruling does not compel Texas to do anything except abstain from confronting Border Patrol agents when they determine that they need to cut through the concertina wire, or move it out of their way.

The Court did not require Texas to remove any wire or prohibit Texas from adding new wire, as the state has been doing this week in Eagle Pass. The decision was limited to the scope of Texas’s October lawsuit seeking to stop agents from cutting it. That case remains before the federal courts’ 5th Circuit.

Texas Gov. Greg Abbott (R) published an open letter on January 24 asserting his state’s “constitutional right to self-defense” against an “invasion,” a term that conflates asylum seekers and other migrants, half of them families and children, with an invading army.

That same day, DHS sent Texas’s attorney-general a new letter (following one issued January 14) reiterating its demand that federal agents be permitted access to Shelby Park in Eagle Pass. The letter contends that the Supreme Court’s decision not only allows agents to cut the concertina wire but to be present in the park, and the border area in general.

Should Gov. Abbott use the Texas National Guard to defy the Court’s ruling or to continue blocking Border Patrol access to parts of the border, Democrats like Rep. Joaquín Castro and Greg Casar (Texas) say that President Biden should place the Texas state military force under federal control.

The constitutional questions at stake are important, analysts contend.

  • “Texas Gov. Greg Abbott is inciting a conflict between Border Patrol and the state’s National Guard that is inching closer and closer toward a violent clash between armed agents of state and federal law enforcement,” warned Mark Joseph Stern at Slate.
  • Gov. Abbott “is going to feel emboldened to keep pushing the envelope to the point where we’re looking at the kinds of potential physical confrontation between federal and state officials, the likes of which we have not seen since the desegregation cases of the 1950s and 1960s,” University of Texas law professor Steve Vladeck told Texas Standard.
  • “The best analogy, ‘given the dueling military-adjacent operations, is the Battle of Fort Sumter, which started the Civil War. That’s how bellicose this action is by Governor Abbott,’” Daniel Morales of the University of Houston Law Center told PolitiFact.
  • Chelsie Kramer and Emma Winger warned at the American Immigration Council’s Immigration Impact blog, “The stakes are high. If allowed to stand, other states might set up their own immigration enforcement schemes, splintering the already complex immigration system and leading to widespread arrests and deportations without key federal protections.”


Migration remains lower in January, though there are some upticks

Across the border, Border Patrol apprehended about 4,000 migrants on Tuesday January 23, which remains a bit less than half the reported December average of just over 8,000 per day (250,000 for the month). Five days earlier, Rep. Henry Cuellar (D-Texas), who represents a border district, told the Washington Post, “We were seeing 10- to 12,000 people a day back in December. Now it’s 2,800, 3,100 people a day.”

CBP has yet to publish an official December migrant-encounter total, which according to various media reports set a single-month record at the U.S.-Mexico border. Since the end-of-year holidays, though, migration has dropped (see WOLA’s January 19, 2024 Border Update).

Among likely reasons for the current drop in migration:

  • According to a few accounts, numerous people sought to cross the U.S. border before the end of 2023 because they were misled by rumors indicating that the border would “close,” or that the CBP One app would no longer work, by year’s end.
  • Seasonal patterns are a factor: migrant apprehensions at the U.S.-Mexico border have fallen from December to January every year since 2014 (except for a 6 percent increase in January 2021). Rainy conditions in the Darién Gap corridor straddling Colombia and Panama, and a tendency not to migrate during Christmas, may also explain some of the reduction.
  • U.S. officials are crediting Mexico with reducing migrant arrivals by stepping up patrols, checkpoints, transfers, and deportations.

Migration has declined sharply in south Texas’s Rio Grande Valley Border Patrol sector, which from 2013 to 2021 was first in migrant encounters among Border Patrol’s nine U.S.-Mexico border sectors, the Washington Examiner reported. An increase in organized crime violence on the Mexican side of the border, in the conflictive state of Tamaulipas, may be a key reason for the reduction.

Apprehensions remain low in the El Paso Sector, which encompasses far west Texas and New Mexico: 470 per day during the week of January 12-18, down from over 1,000 per day in December.

Some parts of the border, though, are seeing migration increase again after post-holiday drops. Border Patrol’s San Diego Sector reported 6,025 migrant apprehensions during the week of January 17-23, a notable increase from 4,606 the previous week.

Currently, the busiest of Border Patrol’s nine sectors is Tucson, which encompasses most of Arizona. There, Sector Chief John Modlin tweeted that agents apprehended 11,900 migrants between January 12-18. That is a significant drop from 18,000-19,000 per week during the first 3 weeks of December 2023, but an increase over 9,200 apprehensions the week of January 5-11.


Most migrants continue to be asylum seekers. “More Border Patrol agents will not stop what’s happening right now, we’re not having a difficulty encountering people,” Modlin told Arizona Public Radio, referring to large numbers of asylum seekers turning themselves in to agents in remote Arizona desert. “The difficulty is what’s happening after we’re encountering them. That’s where the system is now overwhelmed.”

Further south, migration along the U.S.-bound route has declined. In the Darién Gap, where migration has declined every month since a record last August, the deputy director of Panama’s National Migration Service said that more than 6,000 people passed through the treacherous region during the first 12 days of January. If sustained, that rate would mean less than 16,000 migrants for the month, the fewest since June 2022.

In Honduras, where migration has declined for two straight months after setting a monthly record in October 2023, authorities registered an average of 976 migrants per day during the first 21 days of January. If sustained, that pace would mean 30,265 people passing through the Central American country by the end of this month, the fewest since June 2023.

The 42,637 northbound refugees and migrants recorded transiting Honduras in December included fewer Venezuelans, Cubans, and Haitians than in November, but 11 percent more people from Sub-Saharan African countries and 31 percent more from Asian countries, according to a UNHCR monitoring report.


Other news

  • Immigration is now U.S. voters’ number-one concern, edging out inflation by 35 to 32 percent, according to a new Harvard CAPS-Harris poll.
  • Several cabinet-level officials from the United States and Mexico met in Washington on January 19 “to follow up on migration commitments made on December 27.” While there were no major policy announcements, Secretary of State Antony Blinken, Foreign Relations Secretary Alicia Bárcena, and other top officials “discussed the positive impact of efforts to increase migration controls on bus and train routes, crack down on criminal smuggling networks, and scale up repatriations for those who do not have a legal basis to remain in our countries,” according to a State Department readout. Mexico’s Foreign Ministry announced that U.S. and Mexican representatives will soon pay a visit to the Darién Gap. They will also meet soon to discuss migration with the newly inaugurated government in Guatemala.
  • A statement from Ken Salazar, the U.S. ambassador to Mexico, revealed that the U.S. government repatriated migrants on 79 flights between January 1 and 21. The planes returned people to Guatemala (36 flights), Honduras (23), El Salvador (6), Colombia (3), Venezuela (3), Ecuador (2), Peru (2), Romania / India (1), Dominican Republic (1), Nicaragua (1), and Haiti (1).
  • A release from the Texas governor’s office broke down a total of 101,800 migrants placed on buses since April 2022, at state expense, to Washington, New York, Chicago, Philadelphia, Denver, and Los Angeles.
  • House Foreign Affairs Committee Chairman Rep. Michael McCaul (R-Texas) and the ranking Democrat on the chamber’s Homeland Security Appropriations Subcommittee, Rep. Henry Cuellar (D-Texas) are part of a four-member delegation that visited the Texas-Mexico border and Mexico City, where they met with President Andrés Manuel López Obrador. Rep. McCaul voiced “worry about the mental health of our Border Patrol. The suicide rate is going up. They don’t have the proper resources.”
  • In Mexico’s dangerous border state of Tamaulipas, across from south Texas, organized crime preys heavily on migrants, David Agren wrote at National Catholic Reporter. “Everyone arrives kidnapped at the migrant shelter. People released from captivity arrive at the parish, at the Reynosa migrant shelter, too,” said longtime shelter manager Fr. Francisco Gallardo of the Diocese of Matamoros.
  • “In the past, the majority [of Mexican citizens crossing the border] were migrants of opportunity, largely single men, and some women, looking for work opportunities,” Princeton University migration expert Douglas Massey told James North at the New Republic. “But in recent years, we now see from Mexico migrants of despair—entire families, including children. …What we have on the border now is a humanitarian crisis, and not really an immigration crisis.”
  • At Capital & Main, Kate Morrissey reported on the dire situation of asylum seekers who are released onto U.S. streets after spending time in Immigration and Customs Enforcement (ICE) detention facilities.
  • A January 23 CBP release detailed the death of a woman from Mexico on November 18 after she fell from the border wall in Clint, Texas, near El Paso. Three women had been “tied together” by their smugglers “about one foot apart as they climbed the barrier. When one woman panicked [upon seeing Border Patrol approaching], all three of them fell from the barrier.”
  • Guatemalan police dispersed an attempted caravan of about 500 mostly Venezuelan and Honduran migrants who had crossed into Guatemalan territory on January 20. In Mexico, a “caravan” that left the Mexico-Guatemala border zone at Christmas remains in the southern state of Oaxaca. About 1,400 participants are aiming to get to Mexico City on foot, as Mexico has prohibited vehicles from transporting them.
  • CBP sources leaked to Fox News an estimate that 96,000 migrants evaded detection during October-December 2023. If accurate, that would point to Border Patrol apprehending about 85 percent of attempted migrants, which is in line with the past few years and historically high.
  • TRAC Immigration found a serious shortage of attorneys as the U.S. immigration courts’ backlog inflated to 3,287,058 cases by the end of December. Cases in which immigrants had legal representation have fallen in five years from 65 to 30 percent of the total. The shortage affects both sides: “ICE has adopted the practice of not sending an attorney to many hearings.”
  • A backgrounder from the International Refugee Assistance Project explained the Biden administration’s “Safe Mobility Offices” in Colombia, Costa Rica, Ecuador, and Guatemala. These are a so-far limited effort to make legal immigration pathways available to some migrants in those countries, so that they may avoid traveling to the U.S.-Mexico border to seek asylum. The document includes a flowchart laying out the Offices’ complex approval process.