WOLA: Advocacy for Human Rights in the Americas
22 Mar 2024 | News

Weekly U.S.-Mexico Border Update: Migrant deaths, 2024 budget, S.B. 4

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:

A report and database from No More Deaths document a rapid increase in the number of migrant remains recovered in Border Patrol’s El Paso Sector, which covers far west Texas and New Mexico. A preponderance of deaths occur in or near the El Paso metropolitan area, within range of humanitarian assistance. CBP meanwhile released a count of migrant deaths through 2022, a year that saw the agency count a record 895 human remains recovered on the U.S. side of the border. Heat and drowning were the most frequent causes of death.

Nearly six months into the fiscal year, Congress on March 21 published text of its 2024 Homeland Security appropriation. As it is one of six bills that must pass by March 22 to avert a partial government shutdown, the current draft is likely to become law with few if any changes. Congressional negotiators approved double-digit-percentage increases in budgets for border security agencies, including new CBP and Border Patrol hires, as well as for migrant detention. The bill has no money for border wall construction, and cuts grants to shelters receiving people released from Border Patrol custody.

Texas’s state government planned to start implementing S.B. 4, a law effectively enabling it to carry out its own harsh immigration policy, on March 5. While appeals from the Biden administration and rights defense litigators have so far prevented that, the Fifth Circuit Court of Appeals and the Supreme Court have gone back and forth about whether Texas may implement the controversial law while appeals proceed. As of the morning of March 22, S.B. 4 is on hold. Mexico’s government has made clear it will not accept deportations even of its own citizens if carried out by Texas.

 

THE FULL UPDATE:

Reports highlight the crisis of migrant deaths

A new report and database from No More Deaths, an organization that has mainly worked in Arizona, provided the first documentation of migrant deaths in Border Patrol’s El Paso Sector, which includes far west Texas and New Mexico. Its mapping finds that a majority of deaths are happening not in remote areas of the Chihuahuan Desert, but in or near the metropolitan area of El Paso and neighboring Sunland Park, New Mexico. This means many migrants are dying painful and preventable deaths within a short distance of help.

The report confirms local organizations’ longstanding contention that Customs and Border Protection’s (CBP) estimates of migrant deaths on U.S. soil, which total over 9,500 between 1998 and 2022, under-report the true number.

The No More Deaths dataset records more migrant deaths than CBP in each of the last 12 years except for 2023, when CBP counted 149 and No More Deaths 140. Both sources show a dramatic increase in deaths in El Paso, which between 1998 and 2022 has been eighth in recovered remains among Border Patrol’s nine U.S.-Mexico border sectors.

Data table

 

CBP on March 18 released its own reporting on migrant deaths—for fiscal year 2022, which ended nearly 18 months ago. The agency’s Border Rescues and Mortality Data document reported the recovery of 895 migrants’ remains in 2022, a record by far.

The increase accelerated since 2021, coinciding with larger overall numbers of migrants after the pandemic—but also coinciding with the Title 42 policy in place between March 2020 and May 2023. Title 42 made it nearly impossible for people from several countries to seek asylum, expelling them into Mexico instead. This created an incentive to seek to avoid detection by migrating through dangerous wilderness areas, instead of turning themselves in to Border Patrol to ask for protection.

Where cause of death could be identified, 43 percent of 2022 deaths were heat-related and 20 percent were water-related (mainly drowning). The deadliest of Border Patrol’s nine sectors that year was Del Rio, Texas (29 percent), where drownings in the Rio Grande are frequent, followed by the Texas’s Rio Grande Valley and Arizona’s Tucson. Of the 23 nationalities that could be identified, 64 percent were citizens of Mexico. Of remains whose gender could be identified, 79 percent were men.

Data tables: NationalityAgeGenderType of Death

 

2024 Homeland Security appropriation increases border security funding

On the morning of March 21 the congressional appropriations committees   made public the text of the 2024 Homeland Security appropriations bill, along with an explanatory statement. This is one of six budget bills that Congress needs to pass by the end of March 22 to avert a partial government shutdown, and it is likely to pass in coming days without changes.

The legislation provides the Department of Homeland Security (DHS) with $61.8 billion for fiscal year 2024, which is nearly half over. DHS has been operating at 2023 funding levels since October 1. The bill’s overall amount is an increase of about 6 percent from 2023, well over the inflation rate. Provisions include:

  • A $3.1 billion (19 percent) increase in Customs and Border Protection’s (CBP) budget, to $19.6 billion.
  • $496 million to increase hiring enough to sustain a force of 22,000 Border Patrol agents. As of the 4th quarter of 2022, Border Patrol had 19,359 agents. Reaching 22,000 has been more an issue of attrition and recruitment challenges than a lack of budget.
  • $19 million to hire 150 new CBP officers at ports of entry.
  • Funding for 41,500 Immigration and Customs Enforcement (ICE) detention beds, 7,500 above the 2023 level and equal to the amount in the Republican-majority House of Representatives’ version of the bill.
  • $650 million to fund state and local governments’ efforts, usually funding NGOs, to receive recently released asylum seekers and other migrants through FEMA’s Shelter and Services Program (SSP). This is a reduction from 2023 levels. Without this funding, when CBP releases a migrant into the U.S. interior with a notice to appear or parole status, it must do so by leaving them on a border-city street instead of at the doors of a shelter. That has been happening in San Diego and may soon begin in Tucson as SSP funds run out.
  • “Up to an additional $2.2 billion is available to ensure that asylum seekers are processed quickly, ports and other border facilities are not overcrowded, and Border Patrol has the tools it needs to improve border security,” reads a  release from Senate appropriators.
  • There is no money in the bill for additional border wall construction. Congress rejected the administration’s $165 million request for a third joint processing center for apprehended migrants.

Though the bill’s spending increases reflect many Republican border priorities, House Speaker Mike Johnson (R-Louisiana) will need Democratic votes to get it through his chamber, where Republicans hold a razor-thin majority. A group of 41 ultra-conservative House Republicans wrote a letter urging their colleagues to reject any appropriations bill that lacks “core elements” of H.R. 2, a bill approved on party lines in May 2023 that would, among other things, all but end the right to seek asylum at the U.S.-Mexico border.

 

A week of “whiplash” and uncertainty over Texas’s S.B. 4 law

In Texas, the Fifth Circuit Court of Appeals held a hearing on the morning of March 20 to consider whether to maintain a stay on the state’s controversial migration restriction law, S.B. 4, which is currently on hold as appeals of legal challenges continue.

S.B. 4 would allow Texas state law enforcement to arrest people suspected of migrating from Mexico without authorization, and to imprison them if they do not allow state authorities to deport them to Mexico. Rights advocates worry that this would allow Texas to carry out its own immigration enforcement—a federal responsibility—while upholding spurious claims that asylum seekers constitute an “invasion” and creating incentives for racial profiling throughout the state.

A March 19 dissent from Supreme Court Justices Sonia Sotomayor and Ketanji Brown Jackson warned that the law “will disrupt sensitive foreign relations, frustrate the protection of indi­viduals fleeing persecution, hamper active federal enforce­ment efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking.”

The March 20 hearing culminated several days of judicial about-faces that generated uncertainty and confusion along the border and throughout Texas. The story since December (covered in prior WOLA Border Updates) has been as follows:

  • December 18, 2023: Texas Governor Greg Abbott (R) signed S.B. 4 into law. It would go into force on March 5.
  • December 19: The ACLU, El Paso County, Las Americas Immigrant Advocacy Center, and American Gateways sued to challenge the law.
  • January 3, 2024: the Biden administration Justice Department sued to challenge S.B. 4. This suit and the ACLU suit were later combined.
  • February 29: U.S. District Court Judge David Ezra, a Reagan appointee, blocked S.B. 4’s implementation. Texas appeals.
  • March 3: The federal Fifth Circuit Court of Appeals allowed Texas to implement S.B. 4 while it considers Texas’s appeal. However, it delayed implementation until March 10, to allow the Biden administration to ask the Supreme Court to rule whether the law may go into effect during appeals.
  • March 4: The Supreme Court kept S.B. 4 on hold until March 13 while it decided how to proceed.
  • March 12: The Supreme Court extended its stay until 5:00 PM Eastern on March 18.
  • March 18: just after 5:00 PM, the Supreme Court kept in place its hold on S.B. 4, without an end date.
  • March 19: by a 6-3 decision, with its Republican-appointed majority of justices voting together, the Supreme Court allowed S.B. 4 to go into effect while appeals continue.
  • March 19: with a late-night order on a 2-1 vote, the Fifth Circuit Court of Appeals suspended implementation of S.B. 4 while deliberations continue.
  • March 20: the Fifth Circuit Court of Appeals heard arguments about the stay of S.B. 4’s implementation.
  • April 3: The Fifth Circuit Court of Appeals is to hear arguments about the challenges to S.B. 4 that Judge Ezra upheld on February 29.

“We fundamentally disagree with the Supreme Court’s order allowing Texas’ harmful and unconstitutional law to go into effect,” read a White House statement issued March 19, after the Supreme Court’s decision allowing S.B. 4 to go ahead.

Mexico’s government, too, responded with a strongly worded statement refusing to receive migrants deported by Texas state authorities. Mexican President Andrés Manuel López Obrador condemned S.B. 4 as “dehumanizing” during his morning press conference on March 20. Foreign Minister Alicia Bárcena said that the law could cause “phenomenal chaos.”

It is unclear how the appeals panel that met on March 21 will decide on whether to allow Texas to implement S.B. 4 while appeals proceed, or when that decision might come. Judges’ comments during the hearing indicated clear disagreements. The three judges in yesterday’s proceedings were a Biden nominee, a Trump nominee, and a George W. Bush nominee. The Fifth Circuit, which covers Texas, Louisiana, and Mississippi, is considered the most conservative of the federal judiciary’s 13 appeals courts.

Texas state lawyers told judges that the state does not plan to carry out its own deportations—Mexico refuses to accept non-federal deportees—but instead to turn captured migrants over to CBP personnel at ports of entry. But the Biden administration’s DHS has declared that it would not cooperate with enforcement of S.B. 4, a law that it is challenging in court.

The appeals court will hold another hearing on April 3 about S.B. 4’s overall legality, not just the question of whether it can be implemented during appeals.

Gov. Abbott has been claiming that S.B. 4 and other crackdowns under what Texas calls “Operation Lone Star” have caused migration to the state to decline this year, pushing border-crossers to Arizona and California. Tucson and San Diego have recently moved to number one and two in migrant encounters out of Border Patrol’s nine border sectors. There may be something to this: any policy change tends to place would-be migrants and smugglers into “wait and see mode,” bringing a short-term drop in numbers.

Additional causes may also be at work, though: weekly apprehension updates from Border Patrol sector chiefs’ Twitter accounts in Tucson and San Diego are also showing some recent stagnation and decline in migration. Drops in migration are unusual in March, when improved springtime weather conditions usually bring some of the year’s most rapid increases.

 

Other news

  • Lighthouse Media, El Paso Matters, and La Verdad de Juárez published a detailed investigation and a 16-minute video about the March 2023 Ciudad Juárez migrant detention facility fire that killed 40 people whom migration authorities had locked inside. The report highlighted glaring safety failures and Mexican authorities’ likely criminal behavior. It is based on newly revealed security footage, court documents, and survivor interviews. The report notes that a year later, Francisco Garduño, the commissioner of Mexico’s National Migration Institute (INM), remains in his post.
  • Immigration judges have thrown out about 200,000 deportation cases during the Biden administration “because the Department of Homeland Security (DHS) hadn’t filed the required Notice to Appear (NTA) with the Court by the time of the scheduled hearing,” according to documentary evidence obtained by TRAC Immigration. “In three-quarters of these 200,000 cases the immigrant was effectively left in legal limbo without any way to pursue asylum or other means of relief,” TRAC’s analysis notes.
  • At the Darién Gap, the New York Times covered visits from right-wing social media influencers, who interview migrants at posts on the Panamanian end of the trail, often taking their statements out of context to make them appear more threatening. Their videos focus on single male, Muslim, and Chinese migrants.
  • Migration will be on the agenda next Monday (March 25) when Guatemala’s new president, Bernardo Arévalo, meets with Vice President Kamala Harris. Arévalo plans to host a regional ministerial meeting on migration in April. Homeland Security Secretary Alejandro Mayorkas visited Arévalo and other officials in Guatemala on March 20-21.
  • An upsurge in organized crime violence along the border between Mexico’s violent northern-border state of Tamaulipas and adjacent Nuevo León, south of southern Texas, is displacing thousands of people, some of whom are seeking to cross the U.S. border. Some towns in the area have lost 80 percent of their population.
  • With its migration policies—its cooperation on blocking northbound migrants, its response to Texas’s S.B. 4 law—the government of Mexico has leverage over U.S. election outcomes, argue analyses by Washington Post columnist Eduardo Porter and Los Angeles Times reporter Patrick McDonnell.
  • Analysts at Mexico City’s Universidad Ibero published a 250-page report on the militarization of Mexico’s civilian migration agency (National Migration Institute, INM). It points to the agency’s increasing portrayal of migrants as “internal enemies”; the use of military-grade weapons in migrant detention operations (by Mexican National Guard personnel accompanying INM agents); placement of retired officers in INM managerial positions; and use of surveillance technologies, among other indicators. The report sees a U.S. government role in encouraging some of these changes.
  • The Washington Post’s Nick Miroff reported that the Biden administration has doubled last year’s pace of the credible fear screening interviews that asylum officers administer to some protection-seeking migrants at the border. However, as the DHS workforce includes only about 1,000 asylum officers, “the number of people screened remains a small fraction of the number who cross the border illegally. And the government does not have the detention capacity to hold others long enough to interview them.” Of those subjected to the interviews— about 24,500 in January—59 percent are passing, Miroff reported. This is down from about 85 percent between 2014 and 2019, before the Biden administration raised the “fear” standard that interviewees must meet.
  • The Biden administration’s Family Expedited Removal Management program, a strict “alternatives to detention” program that closely monitors some family asylum seekers after release into the United States, has been applied to 19,000 people since May, according to Immigration and Customs Enforcement (ICE) data obtained by the New York Times. “More than 1,500 of them have been deported and around 1,000 have absconded by prying off their ankle monitors.”
  • The number of cross-border incursions of drones, apparently operated by Mexican organized crime groups, “was something that was alarming to me as I took command last month,” Gen. Gregory Guillot, the commander of U.S. Northern Command, told the Senate Armed Services Committee on March 14. “We could probably have over a thousand” drones crossing over the border each month, Guillot added. “I haven’t seen any of them manifest in a threat to the level of national defense, but I see the potential only growing.” Organized crime uses drones for surveillance—what Guillot called “spotters trying to find gaps”—or to move small amounts of high-value drugs.
  • Smuggler use among migrants in Latin America and the Caribbean is not as common as perceived, with two out of every five respondents hiring smugglers, according to a new report from the Mixed Migration Center, based on over 3,000 surveys of migrants in Costa Rica, Honduras, and Mexico. It found that use of smugglers declined from 49 percent of respondents in 2022 to 34 percent in 2023.
  • The DHS Inspector-General reported on unannounced July 2023 inspection visits to CBP holding facilities in Texas’s Rio Grande Valley. Though this was a moment of relatively less migration—the post-Title 42 lull—the agency’s investigators found Border Patrol routinely holding migrants at processing centers for more than the 72-hour limit set by policy.

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