Weekly U.S.-Mexico Border Update: Biden Administration Asylum Shutdown, Mexico’s Asylum Applications Drop

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.

Due to an extended period of staff travel and commitments, this will be the last Weekly Border Update until July 26; we look forward to resuming a regular publication schedule on that date.

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THIS WEEK IN BRIEF:

• Biden administration shuts down nearly all asylum access between border ports of entry

As of 12:01 AM on June 5, migrants who enter U.S. custody between U.S.-Mexico border ports of entry, with few exceptions, may no longer apply for asylum. The Biden administration made this long-signaled change with a proclamation and an “interim final rule” on June 4. Asylum access is “shut down” until daily migrant encounters at the border drop to a very low average of less than 1,500 per day. The ACLU, which challenged a similar asylum ban during the Trump era, plans to sue. It is not clear whether, with its current resources, the administration will be able to deport or detain a significantly larger number of  asylum seekers than it already is.

• Asylum requests in Mexico decline sharply

Mexico’s refugee agency, COMAR, reported receiving 36,860 requests for asylum during the first five months of 2024. That is 42 percent fewer than during the same period in 2023. As in recent years, Honduras, Cuba, and Haiti are the top three nationalities of asylum seekers in Mexico’s system, and most applications are filed in Tapachula and Mexico City. This year’s drop in applications is unexpected, as Mexico’s government reports stopping or encountering over 480,000 migrants between January and April alone.

THE FULL UPDATE:

Biden administration shuts down nearly all asylum access between border ports of entry

The Biden administration’s new proclamation and rule curtailing asylum access at the U.S.-Mexico border, which it calls “Securing the Border,” went into effect at 12:01 AM on Wednesday, June 5. A leaked ICE implementation guidance is also available.

This was a front-page story in the United States; WOLA shared a list of links to news coverage in a June 6 update. For explanations of the new rule’s provisions, implementation, and likely outcomes, see analyses from WOLA, the American Immigration Council, Human Rights Watch, the American Immigration Lawyers’ Association, the Cato Institute, and a coalition of legal and human rights groups. The American Immigration Council also published an in-depth explainer.

The legal right to asylum is now suspended for migrants who cross the border between ports of entry, fail to specifically ask for protection (known as the “shout test”), or cannot prove a very high standard of fear of return, until the daily border-wide average of Border Patrol migrant apprehensions drops below 1,500.

As WOLA’s analysis noted, the border has not seen a daily migrant apprehension average that low since July 2020, during the early period of the COVID-19 pandemic. In fact, 172 of the 296 months since fiscal 2000 (58%) have measured daily averages above 1,500.

The “shutdown” does not apply to unaccompanied minors, victims of “severe” human trafficking, or people who have made appointments at ports of entry using the CBP One smartphone app. CBP did not increase the number of available border-wide appointments over the current level of 1,450 per day. Wait times inside Mexico for such appointments now routinely take months.

Should the daily average ever drop below 1,500, the rule would suspend the asylum restriction until the average once again climbs above 2,500, when it would restart. That daily average is frequently breached: it has happened in 110 of this century’s 296 months (37%).

Reporters from the New York Times and CBS News tweeted that Border Patrol apprehended about 4,300 people on Tuesday June 4 and about 4,000 on Wednesday June 5. The daily average in May, one of the Biden administration’s lightest months, was about 3,800. The Washington Post cited internal DHS projections expecting an average of 3,900 to 6,700 apprehensions per day between July and September.

The new measures add to the Biden administration’s May 2023 “Circumvention of Lawful Pathways” asylum ban, which has already denied asylum to non-Mexican citizens who crossed between ports of entry, cannot prove a higher standard of fear, and did not have an asylum application turned down in another country along the way.

It is unclear whether the new rule resulted in increased returns or deportations of migrants on its first day—a briefing from DHS officials offered no numbers—and if so, how they were carried out.

The proclamation and rule claim that the new “asylum shutdown” authority’s legal underpinning is Section 212(f) of the Immigration and Nationality Act (INA), which allows the President to bar the entry of entire classes of non-citizens considered “detrimental to the interests of the United States.” However, courts have cast doubt on whether 212(f) can in fact be used to remove an asylum seeker already on U.S. soil and asking for protection, who are protected by Section 208 of the INA.

“We intend to challenge this order in court,” the ACLU announced. Aaron Reichlin-Melnick of the American Immigration Council noted that the ACLU “successfully blocked” a similar “2018 Trump asylum ban within days.” Sen. Chris Murphy (D-Connecticut), the principal Democratic negotiator on an unsuccessful “border deal” that sought to legislate a similar asylum limit, said “I am sympathetic to the position the administration is in, but I am skeptical the executive branch has the legal authority to shut down asylum processing between ports of entry on its own.”

The administration’s announcements did not refer to increased capacity to implement its new barriers to asylum seekers. That would involve costly measures like more asylum officers for expedited removal proceedings, more detention space, or more capacity to deport migrants (more flights, or permission from Mexico to deport more non-Mexican citizens by land). Three DHS officials told the Washington Post that “the administration has not scheduled a short-term increase in deportation flights to ramp up the number of migrants returned to their home countries under the new measures.”

Though administration officials reportedly delayed the asylum restriction’s rollout until after Mexico’s June 2 presidential election, the announcement did not come with any word of policy changes from Mexico’s government. Mexican President Andrés Manuel López Obrador told reporters that, in a June 4 conversation with President Biden, he encouraged Biden to deport non-Mexican migrants directly, not into Mexico: “Why do they come to Mexico? We have no problem, we treat migrants very well, all of them, but why triangulate?” (Since January 2023, Mexico has accepted up to a combined 30,000 U.S. deportations per month of citizens of Cuba, Haiti, Nicaragua, and Venezuela.)

The New York Times’s Hamed Aleaziz reported that now, when asylum seekers in custody try to prove that they meet higher standards of fear of return (called “reasonable probability” of harm), they will have just four hours to find legal representation. “Migrants previously had at least 24 hours or more to find a lawyer.”

Reports from the border documented worry and perplexity among migrants. People passing through the northern state of Durango told Milenio that the U.S. policy change did not alter their plans. “We do not have a plan, and we cannot return. This is a low blow,” a 64-year-old man from Colombia told the Guardian in Ciudad Juárez. Some told the Guardian that they are now considering crossing through dangerous nearby desert. Shelter operators in northern Mexican border cities braced for new strains on their capacity.

Coverage of the new rule’s political and electoral implications found progressive Democrats outraged by the rollback of asylum rights; most Republicans claiming it is “too little, too late” and doesn’t do enough to stop migrants from arriving; and centrist Democrats—especially those from tightly contested states or districts—supporting it. (See our June 6 update for many links to coverage and statements.)

Asylum requests in Mexico decline sharply

Mexican migration agents and National Guard personnel carried out a June 5 operation to evict over 400 migrants from a plaza near the Mexico City headquarters of the country’s refugee agency, COMAR. The late-night sweep, which officials claim sought to transfer many to shelters, highlighted the challenges faced by protection-seeking migrants trying to enter Mexico’s underfunded asylum system.

That system is managed by the Mexican government’s Refugee Assistance Commission (COMAR), which released new data on June 3 about the number of asylum applications it has received so far this year. The data, in fact, show a dramatic and unexpected drop.

Between January and May, COMAR reported receiving 36,860 applications for asylum. This is 42 percent fewer than where COMAR stood after the first five months of 2023 (63,436). COMAR is on pace to receive just over 88,000 asylum applications by the end of the year, which would make 2024 the refugee agency’s quietest year since 2020, when pandemic border closures brought a sharp and anomalous drop.

As in recent years, the top five citizenships of asylum applicants are Honduras, Cuba, Haiti, Venezuela, and El Salvador. Looking closely at these numbers reveals that most of this year’s drop in Mexico’s asylum applicants owes to a sharp drop in applicants from Haiti.

Haitian entrants into Mexico’s asylum system are 87 percent behind where they were at this point in 2023. Other top nationalities, particularly Cuba but also Honduras and El Salvador, are in fact ahead of where they were after the first five months of 2023.

This drop in Haitian asylum applications is not paralleled by a drop in migration from Haiti. Mexico’s migration authorities reported encountering or stopping 22,884 Haitian citizens during the first four months of 2024 (out of 481,025 migrants overall); that is more than double the number of Haitian people whom Mexico had reported encountering or stopping in January-April 2023 (10,717). U.S. authorities’ border encounters with Haitian citizens during January-April (40,251) are also nearly double what they were a year before (22,298).

This indicates that Haitian migrants have largely stopped choosing to use Mexico’s asylum system this year. A possible explanation could be the availability of humanitarian parole and CBP One appointments in the United States; those options, however, are also available to migrants from Cuba, whose asylum applications have nearly doubled in Mexico’s system this year.

Other news

• Border Patrol Chief Jason Owens tweeted that the agency has documented more than 300 deaths of migrants on U.S. soil since the 2024 fiscal year began in October, with the hot summer months just beginning.
• As May draws to a close, “the El Paso, Texas-Juarez, Mexico area recorded a maximum temperature of 96 degrees on Thursday,” Border Report reported. “Juarez city officials say several migrants in the past two weeks have come down with heat-related illnesses, including dehydration.” Most of the city’s migrant shelters, which are about 60 percent full right now, force single adults to spend daylight hours off their premises.
• CBS News and Fox News reported that Border Patrol agents at the U.S.-Mexico border apprehended about 118,000 migrants during May 2024, which would make May the third-lightest month for border migrant arrivals of the Biden administration’s 40 full months in office. This continues a trend of reduced migration, dating from January, that appears to owe a lot to the Mexican government’s migrant interdiction operations.
• ICE removed migrants to their countries of origin on 151 flights in May, the most in a month since August 2023 (153), according to the latest “ICE Air Flights” report by Thomas Cartwright of Witness at the Border. This added up to 6.6 deportation flights per weekday, “just over the prior 6-month average of 6.4.” 90 percent of those flights went to Guatemala (47), Honduras (29), Mexico (18), Ecuador (17), El Salvador (13), or Colombia (12). For its part, Mexico carried out nine deportation flights: five to Honduras, three to Guatemala, and one to Colombia.
• The Panamanian government’s human rights ombudsman filed a criminal complaint about more than 400 alleged cases of sexual violence perpetrated against migrants in the Darién Gap region. Before Panama’s Health Ministry suspended its permission to operate in March, Doctors Without Borders had been documenting these cases.
• The New York Times detailed an election-year spike in threats and infiltration attempts suffered by humanitarian organizations, like shelters, assisting migrants on the U.S. side of the border. It identifies James O’Keefe of the provocateur organization Judicial Watch as a ringleader of the campaign against border charities.
• The Washington Post published an in-depth report on the Texas state government’s intense campaign to shut down El Paso’s Annunciation House migrant shelter.
• Texas Gov. Greg Abbott (R) announced the completion of construction at a state government military base near Eagle Pass. 300 Texas National Guard soldiers are now quartered there, a number that will rise to 1,800.
• Abbott also reported that since April 2022, Texas has bused over 117,900 released migrants to the Democratic Party-governed cities of Washington DC, New York, Chicago, Philadelphia, Denver, and Los Angeles, without first coordinating with or informing those cities’ municipal officials.
• Telling the story of a Northeast Cartel hitman killing carried out in Zapata, Texas, a feature from USA Today’s Rick Jervis illustrated the difficulty of carrying out cross-border organized crime investigations. Political disagreements about “Operation Lone Star,” Jervis noted, have worsened law enforcement cooperation between Mexico and the state of Texas.
• A feature at the Guardian told the stories of five asylum seekers’ difficult and even traumatic passage through the U.S. asylum system.
• An Inter-American Dialogue slide presentation cited “1145 charter flights of at least 150 passengers en route to the Mexico-US border” landing in Managua, Nicaragua between July 2023 and January 2024.
• The Nicaraguan opposition-aligned investigative media outlet Onda Local identified some of the officials directing a thriving human smuggling route through Nicaragua, which does not require visas for most visiting nationalities. It alleges that the director of Air Transportation of Nicaragua’s Civil Aeronautics Institute, Róger Martínez Canales, “has the task of collecting the ‘fee’…from the money generated by human trafficking, which amounts to several million dollars, since for each migrant a sum of between $5,000 and $10,000 is charged then distributed among those involved, the airlines and international companies indirectly involved in the business.”
• Between January 1 and April 16, Guatemala has expelled over 7,500 migrants into Honduras, UNHCR reported. “77% were Venezuelans, 9% Colombians and 6% Ecuadorians.” Meanwhile, funding cutbacks have drastically reduced, “from over eight to three,” the number of humanitarian organizations offering assistance in Agua Caliente, the Honduran border town where most Guatemalan expulsions take place.
• The New York Times reported on how the San Diego region has been impacted by a notable increase in migration over the past several months. San Diego has declined somewhat over the past four weeks, and Border Patrol’s Tucson sector is again apprehending more migrants.
• At the New Yorker, Stephania Taladrid profiled Mexico’s foreign minister, Alicia Bárcena, who has sought to defend Mexico’s interests and to push for more action on migration’s “root causes” amid U.S. pressure to crack down on migration transiting Mexico. That pressure has intensified this year, the article notes, as perceptions of border security and migration could determine some voters’ decisions in a tight U.S. election. An unnamed Mexican official described the Biden administration’s approach to migration policy as “schizophrenic.”