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