U.S. border and migration policy started 2023 with an eventful week. To recap:
Biden gave his January 5 White House speech nine days after the Supreme Court ruled that the Title 42 pandemic expulsions policy must remain in place for months pending later decisions. As discussed in WOLA’s January 6 update, up to 30,000 citizens per month from Cuba, Haiti, and Nicaragua are now subject to rapid Title 42 expulsion into Mexico if they are apprehended at the U.S.-Mexico border, regardless of their stated need for asylum or other forms of protection in the United States. Mexico now accepts land-border Title 42 expulsions of eight countries’ citizens, including its own.
The same monthly number of those countries’ citizens may access a two-year “ humanitarian parole” status in the United States i, which requires them to have a sponsor in the United States, a valid or recently expired passport, and passage of a background check. The first two hurdles, in particular, stand in many would-be parole applicants’ way.
Part of the parole application process involves registration via the CBP One smartphone app, which the agency has been rolling out “as a single portal to a variety of CBP services.” The Biden administration announced that the app will now also play a major role in asylum processing. As of January 12, asylum seekers must use the app to access a system of exemptions to Title 42, applying from outside the United States for appointments to present themselves at certain land ports of entry.
Over the past year, CBP has been granting a slowly expanding number of exemptions to Title 42, allowing asylum seekers who “meet specific vulnerability criteria” to approach land-border ports of entry on appointment. This initiative had relied on vulnerability recommendations made by humanitarian groups, immigration lawyers, and other service providers, with at times uncomfortable results. As of January 12, CBP intends for the CBP One app to become the main channel for seeking exemptions.
This use of the app is “an experiment,” an unnamed senior administration official told CNN. “Work is underway to build out the portal and is expected to come together in the next several months.” Critics of the process worry about CBP’s use of location and other data that the app gathers, and the possibility that it could exclude some of the most threatened. “Asking people fleeing for their lives to download an app and wait for months in their home country, where they are in mortal danger, is next-level cynicism,” wrote Melissa del Bosque at the Border Chronicle.
President Biden’s policy speech, further detailed by the Department of Homeland Security (DHS), included other proposals. For migrants who cannot be expelled easily under Title 42, DHS plans to increase use of “expedited removal”: migrants who do not specifically claim fear of persecution if returned, or who fail a credible fear interview with an asylum officer, will be repatriated quickly. It is not clear how broadly the expedited removal policy might expand, as DHS would incur significant cost removing migrants by air.
Migrant advocates are alarmed by a DHS and Department of Justice (DOJ) plan to issue a proposed rule that would deny asylum, with exceptions, to migrants who pass through other countries on their way to the U.S.-Mexico border. The so-called “transit ban” proposal resembles on the surface a policy that the Trump administration implemented in 2019, only to see it struck down by a federal court in 2020. Migrants who “circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified,” a DHS document explained. DHS Secretary Alejandro Mayorkas said that further details about this proposed rule will be “available in the coming weeks.”
Four Democratic senators joined advocacy groups’ opposition to the proposed “transit ban,” warning in a statement that it “will disregard our obligations under international law by banning families from seeking asylum at the border, likely separating families and stranding migrants fleeing persecution and torture in countries unable to protect them.” Mexico’s chief diplomat for North America, Roberto Velasco, told the New York Times that any so-called “safe third country” attempt to send asylum seekers back to Mexico to apply for asylum there “is a red line for us… it would overwhelm the system.” Added Ana Lorena Delgadillo of Mexico’s non-governmental Foundation for Justice, “Mexicans are fleeing violence in their own communities. How are we going to protect others if we cannot protect our own?”
A White House document relating President Biden’s visit to Mexico City mentioned a few other small initiatives on migration cooperation.
As they reduce access to asylum and send a message of tightening at the border, the announced policy changes “were viewed as a win for presidential advisers with a background in national security over the more-liberal immigration policy advocates who are also part of Biden’s team,” the Washington Post reported.
Still, the measures, and Biden’s decision to visit the U.S.-Mexico border for the first time in his presidency, faced sharp criticism from the right. “This checks a box, but it doesn’t even begin to solve the problems we are facing there,” Sen. Shelley Moore Capito (R-West Virginia), the ranking Republican member of the Senate Appropriations Subcommittee on Homeland Security, told the Washington Post. “Your visit to our southern border with Mexico today is $20 billion too little and two years too late,” read a letter that Texas Gov. Greg Abbott (R) handed President Biden upon his arrival in El Paso. A letter from 14 Republican members of Texas’s House of Representatives delegation called on Biden to take even harder steps, like getting Mexico to agree to revive the Trump-era “Remain in Mexico” program. America First Legal, the far-right NGO led by former Trump White House advisor Stephen Miller, promised to “pursue every available legal remedy” to block the Biden administration’s expansion of humanitarian parole, which it called a “colossal horror.”
Biden’s proposals faced strong criticism from backers of the right to seek asylum. Sen. Bob Menendez (D-New Jersey), chairman of the Senate Foreign Relations Committee, called the Title 42 expansion “a disastrous and inhumane relic of the Trump administration’s racist immigration agenda.” Andrea Flores, who worked on immigration policy in the White House during the Biden administration’s first year and is now an advisor to Sen. Menendez, told the Washington Post that the new policy could send “bona fide asylum seekers” back to danger in Mexico, while allowing well-connected migrants facing less danger to access protection using an app. “Democrats must refuse to participate in Republicans’ games with people’s lives,” added a statement from the House Progressive Caucus.
“It’s enraging and sad to see a Democratic administration make it harder for vulnerable people to seek asylum all because they’re scared of angry MAGA voters on this issue,” a member of the Congressional Hispanic Caucus (CHC) told CNN. Both CNN and CBS News reported on a blistering virtual meeting White House and DHS officials held with Democratic CHC members. The legislators said they felt “blindsided” by the announced policy changes, which had not been consulted with them. “The lawmakers were ‘pissed’… ‘It was pretty brutal,’” CBS reported that a participant in the meeting said.
The UN Refugee Agency (UNHCR), which has stated several times its opposition to Title 42 because it blocks the internationally recognized right to seek asylum, repeated that position in a January 6 statement published to the United Nations’ main website. “What we are reiterating is that this is not in line with refugee law standards and that to establish a link between safe and legal pathways which have been announced and of course we welcome the expansion of those on one side that are accessible for some people with curtailment for the right to seek asylum for many more who are ineligible for these pathways,” said UNHCR spokesperson Boris Cheshirkov.
Asked about the policy changes’ critics, Biden replied, “both the extremes are wrong. It’s a basic middle proposition.” He repeated an administration talking point portraying the October 12, 2022 expansion of Title 42 expulsions to Venezuelans as a “success,” noting that the arrival of Venezuelan migrants at the border “has dropped off dramatically…from 1,100 persons trying to enter to—per day—to 250 a day.”
The President was in El Paso, Texas for four hours on the afternoon of Sunday, January 8. CNN called it a “tightly controlled” (AP said “highly controlled”) tour of a stretch of border wall and a port of entry facility, followed by a meeting with community leaders at El Paso County’s recently established Migrant Services Center. Biden did not interact with any migrants. “Biden’s visit to the border got him a small bit of rhetorical breathing room and certainly brought him closer to the problem in a literal sense,” wrote Washington Post analyst Philip Bump. “It didn’t get him closer to a solution.”
At the El Paso County center, the press pool reported hearing Biden ask an aid worker, “If I could wave the wand, what should I do?” AP reported, “The answer was not audible.” The President interacted with El Paso’s bishop, Mark Seitz, a vocal proponent of humanitarian reception of migrants. The Bishop gave Biden a prayer card with a handwritten note from a migrant girl in Ciudad Juárez who prayed to be reunited with her family.
“The city you visit has been sanitized of the migrant camps which had overrun downtown El Paso,” read the letter that Gov. Abbott handed President Biden. The administration and Rep. Veronica Escobar (D-Texas), who represents El Paso, denied having ordered Border Patrol agents to clear central El Paso of recently arrived migrants. But migrants’ rights defenders and local media documented a notable increase in Border Patrol sweeps and apprehensions in El Paso during the first week of January.
The city had seen a sharp increase in migration since the summer: first a mass arrival of Venezuelan citizens, then—in November, weeks after the October Title 42 expansion reduced Venezuelan migration—a large migration of Nicaraguan citizens. Migrant encounters in Border Patrol’s El Paso sector have since declined, to about 700 per day from a mid-December peak of 2,500 per day.
Many Venezuelan migrants had been waiting across the border from El Paso in Ciudad Juárez, Chihuahua, for December 21: the day that a Washington, DC district court judge had determined that Title 42 should end. When the Supreme Court extended Title 42 still further, hundreds of these migrants, though still unable to turn themselves in to U.S. authorities and ask for asylum, crossed into El Paso anyway. (It is not clear how they arrived, though many likely crossed over the rugged Mount Cristo Rey a few miles west of downtown El Paso, where the steep terrain has no border wall.)
Still undocumented and subject to Title 42 expulsion if apprehended, a large number of these migrants came to central El Paso, especially the Segundo Barrio neighborhood near the borderline. Because of their immigration status, federally funded shelters in El Paso were unable to take them in. A few hundred gathered in the vicinity of the neighborhood’s Sacred Heart Catholic Church.
Though Border Patrol agents avoided detaining migrants on church property, they captured vanloads of migrants during nighttime operations there and near the city’s bus terminal on January 3 and 4, El Paso Matters reported; NBC News shared video of Border Patrol agents’ sweeps. “You saw the damage afterward. People were crying because they separated families. It was a hard hit. It was emotional. It impacted people,” said a Colombian migrant.
CBS News shared strong video footage taken outside an El Paso homeless shelter, showing a Border Patrol agent grabbing a migrant and slamming him to the ground. A CBP statement reported that the agency’s Office of Professional Responsibility is “reviewing the incident.”
President Biden joined Mexican President Andrés Manuel López Obrador and Canadian Prime Minister Justin Trudeau in Mexico City for a January 9-10 summit of North American leaders. Their “ Declaration of North America” made general commitments or affirmed shared principles according to “six pillars: 1) diversity, equity, and inclusion; 2) climate change and the environment; 3) competitiveness; 4) migration and development; 5) health; and 6) regional security.” On migration, the document read,
we affirm our joint commitment to safe, orderly, and humane migration under the Los Angeles Declaration and other relevant multilateral frameworks. This includes assisting host communities and promoting migrant and refugee integration; providing protection to refugees, asylum seekers, and vulnerable migrants; strengthening asylum capacity in the region; expanding and promoting regular pathways for migration and protection; addressing the root causes and impacts of irregular migration and forced displacement; and collaborating to counter xenophobia and discrimination against migrants and refugees.
“The commitments,” the Los Angeles Times observed, “appeared to be more symbolic than substantive.” The New York Times added that the summit’s “key deliverables” list “did not include any new major migration initiatives.”
At a January 10 joint press conference, President Biden thanked President López Obrador for “stepping up to receive into Mexico” other countries’ citizens expelled under Title 42.
López Obrador did most of the talking during the joint appearance. He thanked Biden for not building “even one meter” of border wall. (This is not quite accurate, as the administration is filling wall gaps left by the Trump administration’s construction, and is required by law to spend wall-building money in prior years’ Homeland Security appropriations.) The Mexican President asked Biden and the U.S. Congress to regularize the migration status of millions of undocumented Mexican citizens in the United States. He offered barely veiled criticism of Texas Gov. Abbott for having “headed a movement to take migrants to New York, to Washington, and just drop them there. This is politicking. This is completely inhuman. This should not be done.”
Some analysis of the Mexico City meeting portrayed it as a high point in the occasionally thorny relationship between Presidents Biden and López Obrador. Others, like University of Toronto diplomatic historian Robert Bothwell, cited in the New York Times, observed that López Obrador uses migration-control cooperation as leverage to reduce U.S. pressure on other agenda items, like energy policy or human rights: the Mexican President “buys tolerance from the United States by fiddling around with the border in a manner that’s convenient to the Biden administration or to Trump. And in return, he expects the United States to cut him some slack in other areas.”
On January 10, four days after CBP could begin expelling Cuban, Haitian, and Nicaraguan citizens into Mexico, Border Report saw no evidence at shelters and public spaces indicating that those nationalities’ migrants had yet been expelled into Ciudad Juárez. The outlet’s reporters did, however, witness the expulsion of a large group of Venezuelans. Similarly, on January 6, the first day of expanded expulsions, the Ciudad Juárez outlet La Verdad counted 100 expelled migrants, all of them Venezuelan.
With more expelled migrants likely on the way, “we’re on the cusp of another emergency,” Enrique Valenzuela, the Ciudad Juárez-based director of Chihuahua’s State Population Council, told the Los Angeles Times on January 7. Valenzuela had just learned that the city’s federal and municipal migrant shelters were full that day; he “sighed and vowed to call around to local pastors to see if any churches had space.”
One of those pastors, Rev. Juan Fierro of Ciudad Juárez’s Good Samaritan shelter, told Border Report, “Right now, we are full. We have no space. We will open a new space for families next month, but even then, we will not have the capacity to receive so many people.”
In Yuma, Arizona, about 200 mostly Cuban migrants who planned to turn themselves in to Border Patrol “were stunned to hear that a ban on asylum that previously fell largely on other nationalities now applies just as much to them,” AP reported on January 6. Some of the Cuban migrants were political dissidents “driven to leave by longstanding fears of incarceration and persecution and a new sense of economic desperation.”
In Ciudad Juárez, local officials told Border Report that very few expelled Venezuelans are returning to Caracas: they are either trying to cross undetected into El Paso like the hundreds rounded up by Border Patrol in the above discussion of Biden’s visit, or they are persisting in Ciudad Juárez.
Reporting from Tapachula, Chiapas, near Mexico’s border with Guatemala, EFE found that many Nicaraguan migrants, learning about the Biden administration’s expansion of Title 42, were abandoning their journeys and returning to their country, or at least to Guatemala where they are documented under four Central American countries’ passport-free travel arrangement. Like their compatriots in Ciudad Juárez, though, EFE finds that Venezuelans stranded in Tapachula intend to remain there instead of returning.
On January 9, the day after hosting President Biden, El Paso received a visit from eight U.S. senators from both parties. The group visited Yuma the next day.
Four were Republicans: John Cornyn (Texas), James Lankford (Oklahoma), Thom Tillis (North Carolina), and Jerry Moran (Kansas). Three were Democrats: Mark Kelly (Arizona), Chris Coons (Delaware), and Chris Murphy (Connecticut). One recently left the Democratic Party and is now an independent who caucuses with the Democrats: Kyrsten Sinema (Arizona).
Sinema and Lankford are the chairwoman and ranking Republican member of the Senate Homeland Security Subcommittee on Government Operations and Border Management. Murphy chairs the Senate Appropriations Subcommittee on Homeland Security. Coons chairs the Senate Appropriations Subcommittee on State, Foreign Operations, and Related Programs, where Murphy is a member. Cornyn is the ranking Republican on the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, where Coons and Tillis are members.
In December 2022, shortly before the 117th Congress adjourned, Sinema and Tillis had collaborated on draft compromise legislation that would have codified Deferred Action for Child Arrivals (DACA) in exchange for prolonging Title 42, among other border measures. The bill was never introduced, largely due to opposition or inaction from Cornyn and other Republicans.
In El Paso, the senators held a roundtable with El Paso officials, Texas law enforcement officials, and a few local non-governmental organizations. Local leaders called on the senators to permit them to shelter undocumented migrants who ask for help. City Manager Tommy Gonzalez told them “the federal government either needs to set up tents on the border or allow the city to house undocumented migrants,” according to El Paso Matters. Right now, only shelters that do not accept federal government money may take in undocumented migrants; once the demand exceeds those facilities’ capacity, those migrants end up unsheltered.
“We’re not in the smuggling business, we just want to make sure no one dies on our streets,” Bishop Mark Seitz told the lawmakers. Ruben Garcia, the longtime director of El Paso’s Annunciation House network of migrant shelters, pointedly asked Texas law enforcement officials “if he and his volunteers could essentially go to prison for helping migrants.” Days earlier, Garcia had told El Paso Matters, “We have been calling for massive investment in welcoming infrastructure. A broken system—broken by multiple administrations—cannot be resolved and sustained by NGOs or local governments.”
Sen. Cornyn struck a somewhat moderate tone in remarks after the roundtable meeting. “We need an immigration system that is safe, orderly, humane and legal… Right now, this mass of humanity coming across the border is not entering the country through an orderly or legal process. We are trying to cope with it. That’s why you keep hearing from President Biden and Secretary Mayorkas, and others, that they need Congress to step up and provide some answers.”
Three other U.S. senators, all Republican women, paid a visit to Border Patrol’s Del Rio Sector, in the mid-Texas border region. Sen. Cindy Hyde-Smith (R-Mississippi), a member of the Senate Appropriations Subcommittee on Homeland Security, reported that she, Sen. Marsha Blackburn (R-Tennessee), and Sen. Katie Britt (R-Alaska) had “briefings from federal, state, and local law enforcement and border security officials, a roundtable on human trafficking, and a visit to a privately-owned ranch overrun by illegal border activity.”
Hyde-Smith’s remarks were decidedly not bipartisan: “The American people understand that something is very wrong when the drug cartels are delighted with the current administration as they make billions off trafficking women and girls, and flooding our country with fentanyl.”