Weekly U.S.-Mexico Border Update: Possible executive action on asylum, Texas crackdown, CBP accountability issues

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.

Support ad-free, paywall-free Weekly Border Updates. Your donation to WOLA is crucial to sustain this effort. Please contribute now and support our work.

THIS WEEK IN BRIEF:

• The Biden administration and Congress weigh new limits on asylum access

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.

• As S.B. 4 nears implementation, Texas builds a military base and cracks down on a respected migrant shelter

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.

• A heavy week for CBP accountability issues

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.”

THE FULL UPDATE:

The Biden administration and Congress weigh new limits on asylum access

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:

• A one-year DHS authority to shut the border to all undocumented migrants without regard to asylum needs, presumably requiring expulsion to Mexico;
• A one-year authority to expel, into Mexico or alternative countries, all migrants deemed to be “inadmissible” who do not specifically ask for protection;
• A higher standard of fear that asylum seekers would have to meet in screening interviews;
• A prohibition on transporting migrants for any purpose other than adjudicating their status; and
• A one-year restart of the “Remain in Mexico” policy.

The National Immigration Forum published an overview explaining this list of the bill’s provisions in more detail.

As S.B. 4 nears implementation, Texas builds a military base and cracks down on a respected migrant shelter

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.

A heavy week for CBP accountability issues

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.

• February 9: On her Twitter account, conservative journalist Ali Bradley revealed that the chief of the Border Patrol Academy (and host of its podcast), Ryan Landrum, was suspended. CBP’s response to Bradley cited alleged or potential misconduct.
• February 10-11: During winter weather conditions near Sásabe, Arizona, humanitarian volunteers evacuated some of about 400 asylum seekers waiting to turn themselves in to Border Patrol near the border wall, bringing them from the cold to the nearby Border Patrol station for processing, which the agency was apparently unable to do. Some reported that Border Patrol agents in Sasabe detained them, taking pictures of their driver’s licenses and threatening them with arrest for smuggling undocumented people.
• February 13: A report from the ACLU of Arizona and partner organizations detailed Border Patrol’s, and other U.S. immigration agencies’, confiscation of asylum seekers’ belongings on “hundreds” of documented occasions. Confiscated and trashed items include medications and medical devices, identification documents, religious garb and items, money, cellphones, and irreplaceable family heirlooms. “We documented a handful of cases where people ended up in the emergency room” because Border Patrol confiscated asylum seekers’ prescription medications and did not return them, Noah Schramm of ACLU Arizona, a principal author of the report, told the Border Chronicle.
• February 14: The Huffington Post revealed internal Border Patrol emails and text messages showing agents’ continued widespread use of the slur “tonk” to refer to migrants. The agency’s management failed to curb agents’ use of a word that reportedly refers to the sound that their heavy utility flashlights make when hitting a migrant’s head.
• February 14: A U.S. Government Accountability Office report found that “CBP policies do not fully detail the disciplinary process for all employees,” and that the agency’s supervisors “were less likely to be disciplined than non-supervisors for alleged misconduct.”
• February 15: The Washington Post revealed that Joel Martínez, the acting deputy chief of Border Patrol, was suspended from his duties amid allegations of misconduct, and is retiring. On February 20, NBC News identified the reason for the action: an Office of Professional Responsibility investigation into multiple claims of sexual misconduct and harassment on the job. The case recalls late 2022 allegations against Tony Barker, then Border Patrol’s number-three official, who, like Martínez, resigned.
• February 16: A Government Accountability Project whistleblower complaint alleged that CBP’s chief medical officer, Dr. Alexander Eastman, pressured his staff to order “fentanyl lollipops” to bring along on a September trip to the United Nations, and secured narcotics for a friend who is a pilot in CBP’s Air and Marine Operations division. The Chief Medical Officer’s office and its contractor, Loyal Source Government Services, have been under scrutiny for alleged negligence leading to the May 2023 death of a Honduran-Panamanian girl at a south Texas Border Patrol station.
• February 16: The San Diego and Tijuana-based legal group Al Otro Lado filed a lawsuit against CBP for records surrounding the January 2023 in-custody death of Cuban migrant Idania Osorio Dominguez. Ms. Osorio’s daughter “first learned of her mother’s death through a press release on CBP’s website after weeks of attempting to get answers from the agency regarding her mother’s whereabouts.”

(Three of the entries above are repeated or updated from the “Other News” section of WOLA’s February 16 Border Update.)

Other News

• The Washington Post detailed the Donald Trump campaign’s plan for migrant deportations on an unprecedented scale if the former president is re-elected. Proposals include challenging birthright citizenship, using the military to remove people, and building mass pre-deportation camps.
• Salon obtained CBP’s still-unreleased report on unidentified migrant remains found in fiscal year 2022. It reports a record 895 known migrant deaths that year. Humanitarian workers say that this is a significant undercount.
• A 24-year-old man from Jamaica died of hypothermia just south of the border in Tecate, Baja California, Mexico. “He died within an eighth of a mile of jackets and blankets and mittens and water left out by Border Kindness as part of their humanitarian aid mission,” tweeted journalist Wendy Fry.
• CBP reported that a tractor-trailer driver detained at a Laredo, Texas checkpoint died in his holding cell on February 17. While the agency’s account points to a possible suicide, “the video recording system at the Border Patrol checkpoint was not fully functioning at the time of the incident.”
• A February 18 tweet from Panama’s Security Ministry reported that 59,521 migrants had passed through the treacherous Darién Gap region since January 1. Of that total, 38,108 were citizens of Venezuela; 4,777 were from China, 4,532 were from Ecuador, and 4,033 were citizens of Haiti. Minister Juan Manuel Pino predicted that migration through the Darién in 2024 will exceed the 520,000 who passed through the treacherous region last year. Pino estimated that criminal organizations in the Darién made about $820 million from smuggling migrants last year.
• The first six weeks of 2024 saw “an important increase in the number of people irregularly entering Honduras,” most of them seeking to reach the United States, reported the UN Refugee Agency. Between January 1 and February 11, 57,202 people had entered Honduras’s southeastern border, more than double the number during the same period in 2023.
• At the Progressive, Jeff Abbott reported on Guatemala’s new government’s decision to dissolve its national police force’s border unit, DIPAFRONT, amid widespread accusations that its members extort migrants to allow them to keep going north. Abbott noted that DIPAFRONT members have received training funded by the U.S. State Department’s Bureau of International Narcotics and Law Enforcement.
• The State Department broadened a policy of canceling or refusing U.S. visas to owners and senior managers of companies “providing transportation services designed for use primarily by persons intending to migrate irregularly to the United States.” State first announced this policy in November for charter flight operators taking migrants to Nicaragua, which does not require visas of most nationalities and has become an important route for U.S.-bound migrants. Officials are considering extending the visa ban to social media influencers who encourage migrants to pursue irregular travel.
• The death toll is now three from a February 15 armed attack on two vehicles carrying migrants in rural Sonora, Mexico, near the Arizona border. The victims are a child from Ecuador and two adult women, likely from Peru and Honduras. Several others were injured.
• BBC Mundo told the story of a family of Venezuelan asylum seekers who flew to the organized crime-controlled border city of Nuevo Laredo, Mexico for a CBP One appointment at the Laredo port of entry. They missed their appointment because they ended up among thousands whom organized crime groups have kidnapped for ransom in Mexico’s violent border state of Tamaulipas. Now free, they haven’t been able to secure a new appointment using the app.
• In Tijuana, several shelters have faced direct attacks and threats from criminal groups, forcing closures and increased security measures, according to Global Sisters Report.
• According to a Pew Research Center poll, 45 percent of U.S. respondents view the large number of migrants arriving at the border to be a “crisis.” Another 32 percent regard it to be a “major problem.” 80 percent believed that the federal government was doing a “bad job” of dealing with the migration increase. 57 percent believe that more migration increases crime, though data do not support that claim.
• The New York Times’s Eli Saslow visited Arizona borderland ranchers Jim and Sue Chilton, whose remote desert land, long traversed by smugglers and migrants seeking to avoid detection, has now become a destination for asylum seekers from numerous countries, many of them families, waiting to turn themselves in.
• The New Yorker’s Jonathan Blitzer published an 8,000-word profile and interview with DHS Secretary Alejandro Mayorkas, who was impeached last week by House of Representatives Republicans who disapprove of his, and the Biden administration’s, approach to border security and migration.