Weekly U.S.-Mexico Border Update: Senate kills border deal, impeachment goes down, migration drops

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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THIS WEEK IN BRIEF:

• Senate kills border deal

By a vote 0f 49-50, the Senate on February 7 refused to advance debate on a big spending package that included historic new limits on the right to seek asylum at the U.S.-Mexico border, among other measures. The limits were a response to Republican legislators’ demands and the product of two and a half months of negotiations. Most Republican senators walked away from the deal, arguing that the agreed migration limits do not go far enough. The Senate is now considering a bill with almost no border content, though there could be border-related amendments.

• Secretary Mayorkas avoids impeachment

By a stunning 214-216 margin, the Republican-majority U.S. House of Representatives rejected an effort to impeach Homeland Security Secretary Alejandro Mayorkas. While all Democrats voted “no,” House Republican leaders failed to convince enough of their members that what they regard to be Mayorkas’s mismanagement of the border constitutes “high crimes and misdemeanors.” They may try again.

• Border Patrol apprehensions fell by half in January, but may be increasing again

Leaked data point to a 50 percent drop in Border Patrol apprehensions of migrants in January, after reaching record levels in December. January appears to have seen the third-smallest amount of migration of the Biden administration’s thirty-six full months. Reasons probably include rumors, seasonal patterns, and Mexican forces’ stepped-up migrant interdiction. In two busy Border Patrol sectors that report data, though, migration numbers started to increase again during the second half of January.

THE FULL UPDATE:

Senate kills border deal

The Senate held a procedural vote on February 7 about whether to proceed with debate on a $118 billion spending bill with negotiated compromise language that would have reduced migrants’ ability to seek asylum at the U.S.-Mexico border. The language, in response to Republican demands to allow the bill’s consideration, had become public three days earlier, on the evening of Sunday, February 4.

The measure failed by a vote of 49-50, falling well short of the 60-vote threshold that it needed to allow debate to begin. Conservative Republicans and likely Republican presidential nominee Donald Trump opposed the compromise language, arguing that it doesn’t go far enough. Some Democrats, concerned by the harm to migrants, also voted “no.”

The bill, complying with an October Biden administration request, sought to provide additional aid to Ukraine and Israel, among other priorities including $20 billion for border and migration management. As the past few weeks’ Border Updates have narrated, congressional Republicans refused to allow it to move forward unless it included language changing U.S. law to restrict migration at the border, especially by making it harder for migrants to access asylum.

A group of senators launched negotiations before Thanksgiving, coming up last Sunday with a set of measures that outraged migrants’ rights defenders and progressive Democrats who feared people would be harmed, as well as conservative Republicans who wanted the text to be even tougher.

In the end, only four Republicans voted to begin debating the bill: Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, and the Republicans’ chief negotiator, James Lankford of Oklahoma. Even Minority Leader Mitch McConnell (R-Kentucky), who had vocally backed Lankford’s negotiating effort, voted “no.”

Five Democrats voted “no.” (Majority Leader Chuck Schumer (D-New York) had to change his vote to “no” for procedural reasons allowing the bill to be reconsidered.) They were Ed Markey and Elizabeth Warren of Massachusetts, Bob Menendez of New Jersey, Alex Padilla of California, and Bernie Sanders (I) of Vermont, who opposed the unconditional Israel aid in the bill.

Of the legislative text’s 370 pages, 281 comprised the “Border Act,” the series of border security, immigration, and fentanyl-interdiction policy changes and spending items resulting from the senators’ negotiations. Among its many key provisions were:

• Allowing the Department of Homeland Security (DHS) to impose a Title 42-like expulsion authority, “summarily removing” asylum-seekers from the United States (except for hard-to-prove Convention Against Torture appeals), when unauthorized migrant encounters reach a daily threshold.
  • This “Border Emergency Authority” would have kicked in when DHS encountered a seven-day average of 5,000 migrants per day or 8,500 in a single day; at its discretion, DHS could start expelling people when the average hit 4,000.
  • As this threshold included about 1,400 per day who approach ports of entry, expulsions would have been mandatory when Border Patrol apprehended 3,600 or more people per day between ports of entry. Encounters have crossed that threshold in 34 of the Biden administration’s first 36 months.
  • It is not clear whether Mexico would agree to take back expelled migrants across the land border. Immigration and Customs Enforcement (ICE) does not have the capacity to carry out aerial deportations on this scale to countries beyond Mexico.
  • The Border Emergency Authority would have “sunset,” or automatically been repealed, after three years. For each of the three years, DHS would have had fewer days in which it could use it to expel asylum seekers.
• Requiring asylum seekers placed in “expedited removal”—usually 20-25,000 per month right now, but likely to expand—to meet a much higher standard of “credible fear” in screening interviews with asylum officers.
• Changing the asylum system to have asylum officers hand down most decisions in months, while making appeals very difficult and making it rare for cases to be heard in immigration courts.
• Freeing up unused Trump-era border wall money for new barrier construction.
• Increasing Immigration and Customs Enforcement’s (ICE) detention capacity by about 47 percent, to 50,000.
• Weakening the use of polygraphs as an integrity screening requirement for new hiring at CBP and Border Patrol.
• Increasing immigrant visas, improving access to work permits for people who clear initial asylum screening, and hiring thousands of asylum officers.
• Making no substantive changes to the presidential authority to grant humanitarian parole, despite Republican demands.

(For more thorough analyses of the bill’s text, read documents from the American Immigration Council, the National Immigrant Justice Center, and the American Immigration Lawyers Association.)

Media coverage is broadly portraying the Senate outcome as a Republican flip-flop and last-minute caving to pressure from Donald Trump, with Democrats “ setting a trap” for Republicans by calling their bluff and making concessions on tough border measures.

In a February 6 mid-day address from the White House, President Joe Biden reiterated strong support for the bill, despite its limits on asylum and migration that appear to contradict his earlier policy positions. He blamed Donald Trump, and Republicans’ failure to stand up to him, for the bill’s failure, calling on GOP members to “show some spine.”

After the bill failed on the evening of the 7th, Senate leadership introduced a new spending bill with no border or migration content at all: just foreign aid. It leaves out both the “border deal” and the earlier bill’s $20 billion in border spending, except for a few fentanyl-related provisions. This new bill overcame an initial hurdle on February 8 despite the objections of some Republicans holding out for border and migration language: by a 67-32 vote, senators cleared it for debate.

This may not be the end of the story for border legislation, though. Democratic and Republican Senate leaders are negotiating migration-related amendments that the latter might bring to the chamber’s floor during the next few days’ debate. (The Senate is postponing the beginning of a two-week recess and working through the weekend.)

These amendments could seek to revive the “border deal” asylum limits, or even bring up elements of H.R. 2, a hardline bill thoroughly gutting asylum that passed the Republican-majority House of Representatives last May without a single Democratic vote. These would be unlikely to pass: as they are not germane to what is now a bill with no border or migration content, the amendments would need 60 votes to win approval.

The New York Times’s Carl Hulse published an overview of past 21st-century attempts to push bipartisan border and immigration reforms through Congress. All failed, despite majority support, due to opposition from the right.

Two U.S. officials told NBC News that if legislative avenues fail, the Biden administration is considering “executive action to deter illegal migration across the southern border” before migration inevitably rises again. The article does not specify what these actions might be, though they “have been under consideration for months” and “might upset some progressives in Congress.”

Secretary Mayorkas avoids impeachment

After months of preparation and hearings, the House of Representatives’ Republican leadership failed to impeach Department of Homeland Security (DHS) Secretary Alejandro Mayorkas, losing a vote in the full chamber by a stunning 214-216 margin. Surprisingly, Speaker Mike Johnson (R-Louisiana) went ahead with the vote on articles of impeachment even though all Democrats were opposed and House Republican leadership was not certain about its party’s vote count.

Secretary Mayorkas, whom House Republicans claim has mismanaged the border to the extent that it constitutes “high crimes and misdemeanors,” will keep his job for now thanks to the votes of three Republican members: Reps. Ken Buck (R-eastern Colorado), Tom McClintock (R-San Joaquín Valley, California), and Mike Gallagher (R-Green Bay, Wisconsin). A fourth Republican, Rep. Blake Moore (R-Utah), changed his vote to “no” for procedural reasons, allowing a motion to reconsider.

Rep. Buck published a February 5 column in The Hill laying out his “no” vote, arguing that while he disapproves of Mayorkas’s performance at DHS, it does not constitute high crimes or misdemeanors, and seeking impeachment sets a precedent that Democrats could use against Republicans. Rep. Gallagher published similar arguments in the Wall Street Journal.

House Republican leaders vow to bring the impeachment up again when one more member of their caucus is present: Majority Leader Rep. Steve Scalise (R-Louisiana), who is receiving treatment for blood cancer. Scalise was not expected to return to the House this week.

If the House ever does vote to impeach Mayorkas, it would be only the second impeachment of a cabinet member, and the first since 1876. Even after a successful House vote, the two-thirds vote necessary to convict will be unattainable in the Democratic-majority Senate.

Border Patrol apprehensions fell by half in January, but may be increasing again

Border Patrol agents apprehended about 125,000 migrants at the U.S.-Mexico border in January, according to data leaked to the Washington Examiner. That is almost exactly a 50 percent drop from the record 249,785 migrant apprehensions Border Patrol reported in December 2023. It would be the third-smallest total of the Biden administration’s thirty-six full months.

The Examiner noted that well over half of January’s apprehended people arrived as single adults: 77,000, down from 135,593 in December. 40,000 were members of families, a sharp drop from 101,725 in December. About 7,000 were unaccompanied children, down from 12,467 in December.

As noted in WOLA’s January 26 Border Update, the December-January decline probably owes to three factors: false rumors that the border would “close” at the end of the year; seasonal patterns; and Mexico’s government stepping up patrols, checkpoints, transfers, and deportations.

Migration appears to have picked up again starting in late January, however, according to the Twitter accounts of Border Patrol sector chiefs in Tucson, Arizona and San Diego, California. Both have been posting weekly updates about the numbers of migrants whom agents have apprehended in their sectors.

In San Diego, agents apprehended 8,659 migrants during the week of January 31-February 6. That is more than any week’s apprehensions in the sector during December, and a 141 percent increase since San Diego apprehensions bottomed out during the week of January 3-9. In Tucson, the 13,800 migrants apprehended during the week of January 26-February 1 were 50 percent more than during the week of January 5-11.

Other News

ICE removal flights:

• ICE operated 130 removal flights in January, up a bit from 128 in December and down from 140 in November, according to Tom Cartwright’s latest monthly report for Witness at the Border. Top destinations were Guatemala (53 flights), Honduras (37), El Salvador (11), Colombia (6), Ecuador (5), and Venezuela (4). One flight each went to Mauritania, India, and Romania.
• As the Biden administration reinstates some sanctions on Venezuela, two scheduled flights deporting Venezuelan migrants back to Caracas have been canceled since late January, the New York Times reported.
• A deportation flight to Morelia, Mexico on January 30 was the first such flight to Mexico’s interior since May 2022, the New York Times reported.

Jacumba Springs and the central California border:

• The Guardian accompanied volunteers in the wilderness of California’s central border zone, more than an hour’s drive east of San Diego, where they hike through hostile territory looking for people in territory where migrant deaths are frequent.
• CBS News’s “60 Minutes” program visited a gap in the border wall in Jacumba Springs, 60 miles east of San Diego, and reported on asylum seekers—including a big increase in citizens of China—turning themselves in to Border Patrol in difficult outdoor conditions.
• Across the border from this region, in Mexico’s state of Baja California, Border Report and iNewsource reported from Jacume, where Mexico’s government “significantly escalated enforcement” this week, installing a small National Guard camp at a point where asylum seekers frequently cross.
• Associated Press reporters Elliot Spagat and Javier Arciga combined an analysis of the Senate bill’s asylum provisions with an on-the-ground report from Jacumba Springs.

Texas:

• Thirteen Republican state governors joined Texas Gov. Greg Abbott (R) in the border town of Eagle Pass on February 4. It was another show of conservative support as Texas challenges federal authority over border and migration policy, insisting that migrants are an “invasion” and blocking Border Patrol from full access to Eagle Pass’s sprawling riverfront park.
• Abbott pledged to intensify his security buildup and claimed that Texas’s policies are behind January’s drop in migration at the border, even though sectors in Arizona and California also saw reductions.
• Abbott’s event somewhat overshadowed a right-wing gathering nearby, outside Eagle Pass; much coverage of this “convoy” focused on its participants’ religious fervor.
• “You have this very strange tableau now of armed National Guard—their patches say ‘U.S. Army’ on them—telling Border Patrol that they cannot enter an area that is actually within the U.S. border on U.S. territory,” WOLA’s Adam Isacson told PRX’s “The World” radio program.
• If President Biden were to confront Gov. Abbott by federalizing the state’s National Guard, he would have to invoke the Insurrection Act, explained Joseph Nunn of the Brennan Center for Justice at Just Security. While doing so “would almost certainly pass legal muster,” Nunn counsels against it for now, as it “should be a tool of last resort.”
• Florida Gov. Ron DeSantis (R) is sending a battalion of the Florida State Guard to the Texas border. This force is different from a National Guard, which sometimes can come under federal control: several states also have (usually tiny) paramilitary forces, commanded by their governors, and funded entirely with state budgets. It is likely that the U.S. Code does not authorize their use outside their home states.
• A letter from 22 Congressional Hispanic Caucus members prodded the Biden administration’s Justice and Homeland Security Departments to investigate the state of Texas for impeding Border Patrol’s access to a broad swath of riverfront in Eagle Pass.
• “What makes Abbott’s recent actions most bizarre, though, is his target: Border Patrol,” read an analysis from Texas Monthly’s Jack Herrera.
• “He forgets that Texas used to belong to Mexico and puts up barbed wire fences and has an anti-immigrant policy against those who, out of necessity, have to go to the United States to make a living,” said Mexican President Andrés Manuel López Obrador of Gov. Abbott.

Also notable:

• In an interview at the Border Chronicle, WOLA’s Adam Isacson walked through some of the current migration trends and data at the border and along the migration route right now.
• Border Patrol Chief Jason Owens tweeted that the agency has apprehended “+160 undocumented subjects with gang affiliations” during the first four months of fiscal year 2024. If sustained all year, this rate—about 40 allegedly gang-tied migrants per month—would be the fewest since fiscal 2021 and the 3rd-fewest in the 8 years since fiscal year 2017.
• Fentanyl addiction and overdoses have reached crisis levels in Tijuana and some other Mexican border cities, Will Grant reported at the BBC.
• Recent years’ immigration increases will add over $7 trillion to the U.S. economy over the next ten years, raising U.S. government tax revenues by $1 trillion, according to projections published by the Congressional Budget Office and reported by Bloomberg.
• A commentary from the Center for American Progress broadly supported the bill currently before the Senate, but voiced misgivings about the asylum limitations. It called for more investment and reform to the U.S. asylum system and for more assistance to “stabilize” and support migrant integration in the Americas.
• At the Nation, Arizona-based journalist John Washington published an essay based on his new book, The Case for Open Borders.