Weekly U.S.-Mexico Border Update: Possible executive action on asylum, Texas crackdown, CBP accountability issues
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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Media reports indicate that the White House is considering executive orders that would restrict asylum access. Possibilities include a new expulsion authority and a higher bar in credible fear screening interviews, though those could run counter to existing law or duplicate current policies. Meanwhile, a group of 10 moderate Republicans and centrist Democrats is sponsoring a bill that would mandate expulsions and “Remain in Mexico” along with Ukraine and Israel aid.
On March 5, depending on what a federal judge decides, Texas will begin enforcing a law making it a state crime, punishable by imprisonment, to cross the border without inspection. Texas is also accusing a respected El Paso migrant shelter of “harboring” and “smuggling” migrants and threatening to shut it down. The state’s governor is building a giant National Guard base near Eagle Pass.
The week of February 9-16 saw nine known examples of alleged human rights abuse, misconduct, or other reasons for concern about the organizational culture at U.S. border law enforcement agencies. Two senior Border Patrol officials were suspended, emails revealed widespread use of a slur to describe migrants, a new report detailed seizures of migrants’ belongings, and a whistleblower complaint revealed a bizarre incident involving “fentanyl lollipops.”
According to several media outlets’ reports, the Biden administration is considering an executive order to adopt asylum restrictions at the border. Some of them may resemble measures agreed by Senate negotiators in a deal that fell last month to Republicans who wanted even harder restrictions.
Actions could include expelling asylum seekers when migrant encounters reach a certain daily threshold, or increasing standards of credible fear that asylum seekers would have to meet when subjected to initial screening interviews. It is not clear, though, how these would be legal or different from existing rules.
Existing law does not allow expulsions of asylum seekers for reasons of volume, which is why the unsuccessful Senate “border deal” sought to rewrite the law. Either way, Mexico’s reception of expelled people is not guaranteed. Meanwhile, the administration’s May 2023 asylum “transit ban” rule has already raised the credible fear standard for most asylum seekers apprehended between ports of entry—or at least for the approximately 25,000 per month who, given asylum officers’ current capacity, are placed in expedited removal proceedings.
Reports indicate that the measures could invoke Section 212(f) of the Immigration and Nationality Act (INA), which empowers the President to refuse entry to broad classes of migrants. Federal courts ruled in 2018, however, that this statute does not permit blocking asylum to people already on U.S. soil and requesting it. Another statute, Section 208 of the INA, allows people in the United States who fear return to apply for asylum, regardless of how they arrived.
In their opposition to the “border deal,” which failed to clear a Senate vote to proceed on February 7, some congressional Republicans had argued that the changes were unnecessary because President Biden already has the authority to “shut the border.” While President Biden would appear to be upholding the Republicans’ argument if he used executive authority, a very likely outcome is that courts would again strike down any blanket refusal of asylum.
Axios reported on February 19 that an executive order could even come in the two weeks before President Biden’s March 7 State of the Union address.
“Anxieties won’t be pacified by vague and unrealistic promises to ‘shut down the border’; they need to be addressed with policies that reduce the real and perceived burdens of asylum seekers,” wrote Jerusalem Demsas in an Atlantic feature essay. “For political reasons, the Biden administration has abdicated its responsibility to coordinate where asylees from the southwestern border end up.”
On February 21 the National Immigrant Justice Center published a list of 10 actions that the Biden administration could take now, through executive action, to “reclaim the narrative” on immigration. They include a White House role in coordinating processing, adjudication, and work authorizations; a steep reduction in migrant detention; and dismantling Texas’s “Operation Lone Star.”
The House of Representatives is out of session until February 28, but while members are away, a group of centrist Republicans and Democrats are floating legislation that would restrict the right to seek asylum at the border, to a greater extent than what the Senate “border deal” foresaw.
Speaker Mike Johnson (R-Louisiana) and leadership of the House’s slim Republican majority are refusing to consider a package of Ukraine, Israel, and other aid that the Senate passed on February 12, because it stripped out the “border deal” and any other border or migration provisions. As a way to move the foreign aid forward while satisfying Republican demands that it come with tough border measures, members of the House, five from each party, introduced on February 15 what they call the “Defending Borders, Defending Democracies Act” ( H.R. 7372).
As noted in WOLA’s February 16 Border Update, this bill includes some controversial border provisions:
The National Immigration Forum published an overview explaining this list of the bill’s provisions in more detail.
In Austin on February 15, federal District Court Judge David Ezra heard arguments in the Biden administration’s and several organizations’ challenge to S.B. 4, a new Texas state law—set to go into effect on March 5—making unauthorized border crossings a state crime punishable by prison or immediate removal to Mexico.
This means that asylum seekers could be imprisoned or made to return to Mexico if Texas—not federal—forces encounter them first. Rights defenders worry that it could also lead Texas law enforcement agents throughout the state to commit racial profiling: demanding documentation from those they suspect of having crossed improperly, and arresting those who cannot produce it.
If his questioning and comments were any guide, Judge Ezra, a Reagan appointee, seemed skeptical about Texas’s defense of the law. Ezra said he shared concerns about illegal immigration, but noted that if states can carry out their own immigration laws, it could “turn us from the United States of America to a confederation of states.”
Reports on February 20 meanwhile revealed that Texas’s attorney-general, Ken Paxton (R), is seeking to revoke the license of a 47-year-old Catholic non-profit migrant shelter in El Paso. Annunciation House works with CBP and El Paso’s city government to receive asylum seekers released from federal custody, helping migrants avoid being left on the city’s streets and helping them arrange travel to destinations in the U.S. interior. Paxton accuses the shelter of “alien harboring, human smuggling and operating a stash house,” and demanded that it hand over a large trove of client records on a day’s notice.
Annunciation House is to hold a press conference on February 23. Texas nonprofits and political leaders are rallying around the shelter in a series of public statements.
On February 16 Texas’s governor, Greg Abbott (R), announced the construction of an 80-acre state National Guard forward operating base. It would be located in Eagle Pass, not far from Shelby Park, the riverfront recreation area that Texas has seized, prohibiting even most Border Patrol agents from entering. The site will be able to house between 1,800 and 2,300 soldiers.
“Let him put as many as he wants,” said Mexican President Andrés Manuel López Obrador in response. “Supposedly this is how he is going to detain the migrants. Pure politicking! It is not serious.”
Public records obtained by the Texas Newsroom, a public radio journalism outlet, reveal that Texas has spent over $148 million to bus 102,000 migrants to Democratic Party-governed cities elsewhere in the United States. That is $1,451 per passenger.
Amid all these measures, a University of Texas at Austin poll showed Texans’ opinions about the border becoming more hardline. 59 percent of voters, including 48 percent of those identifying as Democrats, “ favor making it harder for migrants to seek asylum in the United States.” It found Abbott’s approval rating to be 53 percent, up from 48 percent in a December survey.
WOLA closely tracks allegations of human rights abuse, corruption, and other improper behavior by U.S. border law enforcement agencies. We co-published a report last August and maintain an online database of examples, to which are in the midst of adding a big new round of updates.
Regrettably, the week of February 9-16 added an unusually large number of new and troubling allegations and revelations at CBP and Border Patrol.
(Three of the entries above are repeated or updated from the “Other News” section of WOLA’s February 16 Border Update.)