Weekly U.S.-Mexico Border Update: Title 42 politics, Ukrainian refugees, timid DHS oversight

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.

This week:

• The CDC’s April 1 decision to end its “Title 42” pandemic order, which would reopen the border once again to asylum-seeking migrants after May 23, was a hotly debated issue in Washington this week. Most Democrats—including those at an April 6 House hearing—hailed the decision. Conservative Democrats, and those facing stiff re-election challenges seven months from now, criticized the Biden administration for a lack of clear planning to manage a likely increase in protection-seeking migrants at the border. A legislative push to prolong Title 42 could complicate big COVID relief legislation moving through Congress.
• DHS has exempted Ukrainian citizens—and only Ukrainian citizens—from Title 42, allowing them to cross in steadily growing numbers at ports of entry, especially in Tijuana where at least 2,800 are now waiting for a chance to cross to San Diego.
• The non-governmental watchdog POGO revealed documents pointing to timid oversight at the DHS Inspector-General’s office, even in the face of very grave findings about sexual harassment and domestic abuse among the workforce of the Department’s troubled law-enforcement agencies.

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Amid concerns about capacity, Title 42’s end faces political blowback

One of the thorniest political issues in Washington this week surrounded the April 1 Centers for Disease Control and Prevention (CDC) decision to terminate “Title 42,” the pandemic authority allowing even asylum-seeking migrants to be quickly expelled from the U.S.-Mexico border. (See last week’s Border Update for details about that decision.)

Migrants’ rights advocates and progressive Democrats applauded the decision to return to the regular asylum system laid out in U.S. law, after more than two years and 1.7 million expulsions, though some lamented the CDC’s decision to delay Title 42’s end until May 23. Republicans, conservative Democrats, and a few Democratic legislators from conservative states criticized the decision to end the public-health authority. Democratic critics argue that the Biden administration has not yet put in place the planning and processing capacity necessary to avoid forcing migrants into overcrowded and ill-equipped facilities, along with images of politically damaging chaos, once—as most expect—Title 42’s lifting causes a sharp rise in migration.

Even with Title 42 in place, migration numbers are already high; Border Patrol is reporting several daily apprehensions of groups exceeding 100 people at a time. Migrants from countries whose citizens are difficult or costly to expel have hit historic highs. Customs and Border Protection (CBP) apprehended more than 32,000 Cuban citizens in March, according to unpublished figures revealed by the Washington Post. That will almost certainly make Cuba the number-two nationality, after Mexico, of migrants encountered at the border last month. (The sharp increase in Cuban migration owes largely to Nicaragua’s November 2021 decision to suspend visa requirements for Cuban visitors.)

Ricardo Zúniga, the State Department’s principal deputy assistant secretary for Western Hemisphere affairs, told the Los Angeles Times to expect an initial decrease in migrant arrivals at the border, as single adults will likely no longer attempt repeat crossings. (WOLA echoed this analysis in a March 31 Q&A document.) After that, though, Zúniga expects numbers to increase, as asylum seekers—especially families—from Mexico and Central America take advantage of the renewed opportunity to ask U.S. officials for protection in the United States.

While there could “very well” be a spike in arrivals at the border after May 23, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas told CBS News that the Department is planning and preparing for “different contingencies.” As last week’s Border Update discussed, DHS has formed a “Southwest Border Coordinating Center,” headed by a Federal Emergency Management Agency (FEMA) official, to coordinate inter-agency responses. “Having DHS physically in the room with other agencies makes a huge difference,” former Biden immigration adviser Tyler Moran told Vox.

A 16-page March 28 “Southwest Border Strategic Concept of Operations” document signals an intention to increase CBP holding capacity to as much as 25,000-30,000 migrants awaiting processing, nearly double current space. Managing this sort of flow would call for an additional 1,500-2,500 law enforcement officers, the document adds, requiring CBP to borrow personnel from other agencies. “600 additional Border Patrol agents have been deployed and a senior DHS official said the department is prepared to mobilize other officers,” notes an April 1 DHS statement. The Defense Department has agreed to a DHS request to provide additional assistance for at least 90 days, including buses to transport migrants, contracted medical personnel, and perhaps space on military installations to hold and process recently arrived migrants.

An April 4 document from CBP Commissioner Chris Magnus includes a bulleted list of additional steps the agency is taking to prepare for a post-May 23 spike in migrants requiring orderly processing, but as Reuters notes, the list lacks “details about the number of agents being deployed or specific locations for deployments.”

Critics worry that these plans are insufficient, or not specific enough, to handle a big increase in migration. Those outside the government, like humanitarian NGOs and members of Congress, say they’ve received little detailed information about what the plan is, though WOLA is hearing that DHS has begun to reach out to border-area NGOs. “The most important thing will be to know the method for receiving asylum applications once Title 42 is eliminated,” said the official in charge of migrant response for Tijuana’s municipal government, Enrique Lucero. “Let’s hope that this announcement is very clear to see the methodology, because if it must happen in person, it will be chaos at the border, inevitably. But if they do it online, upload their application and they are given their appointment, that will make our job easier, because they would no longer have to travel to the border.”

Citing the lack of a plan, a small but significant number of Democratic legislators has called not for getting CBP to hurry up and install capacity by May 23, but instead for prolonging Title 42, despite the suffering that would cause for asylum seekers. These include conservative Democrats (Sen. Joe Manchin of West Virginia, Sen. Kyrsten Sinema of Arizona, Sen. Jon Tester of Montana, Rep. Henry Cuéllar of south Texas) and moderate Democrats from conservative states whose vulnerable seats are up for re-election this year (Sen. Mark Kelly of Arizona, Sen. Maggie Hassan of New Hampshire, Sen. Raphael Warnock of Georgia, Sen. Catherine Cortez Masto of Nevada, Rep. Vicente González of south Texas).

Five Democratic senators joined six Republicans in sponsoring a bill that would block the CDC from lifting Title 42 until 60 days after the end of the U.S. government’s declared COVID-19 emergency. During those 60 days, DHS would have to submit a plan to address increased migrant arrivals; if it failed to do so, Title 42 would remain in place for 30 more days.

This bill would not be a standalone piece of legislation: the senators expect to attach it to a $10 billion COVID relief package currently on a fast track for congressional approval. While this amendment might have the necessary votes in the 50-50 Senate, its approval in the Democratic-majority House is less certain. Most House Democrats, like those who led the House Homeland Security Committee’s first-ever hearing on Title 42, on April 6, have strongly supported terminating the pandemic expulsions provision and restoring asylum.

Already, Senate Republicans blocked an effort to push through the COVID relief bill before this weekend, when Congress begins a 2-week recess—an express step that would have required all 100 senators’ consent—by demanding that the process include amendments, including one to preserve Title 42.

Republicans are gearing up to make post-Title 42 migration a top issue in their campaigning for 2022 elections. Texas Gov. Greg Abbott (R), a fierce Biden critic who is up for re-election this year, held an April 6 news conference announcing a further hardening of state-government border measures in response to the CDC announcement. Abbott plans to step up “safety inspections” of cargo coming across the border from Mexico, even though it would “ dramatically slow” vehicle traffic coming from border ports of entry.

The governor also announced an intention to put asylum-seeking migrants, upon their release from CBP custody, on buses going directly to Washington, DC. As that would technically constitute kidnapping across state lines, the governor’s office revised this proposal to clarify that it is “voluntary.” If this proposal goes forward, Gov. Abbott would ironically be doing a favor for migrants whose relatives, support networks, and immigration court dates are on the U.S. east coast: by paying their way to Washington, Texas taxpayers would be saving migrants and their families hundreds of dollars in transportation costs that they would otherwise have to pay themselves. “I think that would be good if they ask the migrants, ‘are you going to the East Coast? So, yes? Great!’” said Sr. Norma Pimentel of Rio Grande Valley Catholic Charities.

Gov. Abbott has used state funds to deploy about 10,000 Texas state National Guardsmen to respond to increased migration, about 6,500 of them physically at the border. The governor announced plans to send riot gear and concertina wire, and to have guardsmen hold “mass migration rehearsals,” in preparation for a foreseen post-Title 42 migration increase.

Meanwhile, though, Abbott’s military deployment is running out of money. Stars and Stripes reported that the Governor’s $3.9 billion “Operation Lone Star” state border security effort, which includes the National Guard presence, will be out of funding by May 1. “The Guard would need about $531 million to maintain its current force at the border through the end of the fiscal year in Texas, which is Aug. 31,” Texas State Adjutant General Thomas Suelzer told a Texas State Senate committee. Gen. Suelzer expects to begin reducing the troop footprint soon.

 

Ukrainian migrants are arriving in ever-greater numbers

The Biden administration announced in March that the U.S. government would accept 100,000 Ukrainians fleeing the Russian invasion “through the full range of legal pathways.” It has not, however, revealed details about how this will work. Mexico, meanwhile, does not require visas of Ukrainian tourists—they can legally remain in the country for 180 days—so thousands have been arriving by air. They then seek to cross into the United States, where DHS appears to be granting humanitarian parole to most of them.

CBP is processing Ukrainians at ports of entry, but has not built capacity to handle more than a few hundred per day. As a result, the Ukrainian population in Mexico’s border cities is growing fast. This is especially the case in Tijuana, where most are arriving, though we are now hearing about arrivals in Ciudad Juárez and, anecdotally, in Reynosa.

“More than 2,000 Ukrainians have made their way to the U.S. border from Mexico over the past 10 days,” up from 50 a week earlier, the New York Times reported on April 6. Local media reported 2,800 in Tijuana alone on April 8.

At first, Ukrainians in Tijuana gathered near a small bus stop by the San Ysidro port of entry leading to San Diego, the border’s busiest official crossing, as they waited a turn to petition CBP personnel for protection. Tijuana’s municipal government opened up a nearby athletic facility, which about 1,800 are now using as a shelter. (It is the same facility where participants in a highly publicized “migrant caravan” first gathered in late 2018.)

CBP has slowly but steadily increased its capacity to receive and process the arriving Ukrainians. Earlier this week, the port of entry was only taking about 200 people per day; the number now able to cross, according to local authorities, is about 400-600 per day. In a scene familiar to those who’ve worked with asylum-seeking migrants in Tijuana in the past, migrants organized their own “waitlist” to approach the port of entry, using a yellow legal pad. (Volunteers assisting the migrants have since computerized this waitlist.)

The Ukrainians’ ability to approach the port of entry is a giant exception to Title 42, which has closed the ports to all other nations’ undocumented, protection-seeking migrants. Cities like Tijuana are full of migrants from numerous countries—including Russia—waiting for Title 42 to end so that they, too, might approach the port and ask for asylum or other protection.

Many of those blocked migrants are seriously threatened, but the vast majority are non-European, a fact that gives rise to allegations of racism. While she applauds the decision to welcome Ukrainian refugees, Blaine Bookey of the Center for Gender and Refugee Studies at University of California Hastings, who has been assisting Ukrainians in Tijuana, told the New York Times, “There is no way to look at what’s happening at the southern border other than along racial lines.”

 

DHS Inspector-General suppressed information about sexual harassment and domestic violence in the workforce

The Project on Government Oversight (POGO) obtained documents from the DHS Office of Inspector-General (OIG) indicating that the agency’s independent watchdog has been suppressing, delaying, and watering down information about serious patterns of sexual harassment and domestic abuse within the Department’s law enforcement agencies.

Past weekly Border Updates have recorded numerous allegations of improper use of force, racist messaging, mistreatment of migrants, and other indicators of serious organizational culture issues within agencies like CBP and Immigration and Customs Enforcement (ICE). These concerns call for strong internal oversight controls—but POGO’s findings indicate that those controls, at least at the OIG, are weak.

The POGO report, “Protecting the Predators at DHS,” is a worthwhile read with some shocking findings, as is the New York Times’s April 7 coverage of the report. Some key points include:

• A 2018 OIG survey found that more than 10,000 CBP, ICE, Secret Service, and Transportation Security Administration (TSA) employees had experienced sexual harassment or sexual misconduct at work. That is more than a third of the 28,000 survey respondents. Of these, 78 percent said they did not report the incident, often out of a belief that doing so would derail their careers. Examples included “surreptitious videotaping in bathrooms, unwelcome sexual advances and inappropriate sexual comments.” The survey was part of an OIG report for which fieldwork ended two and a half years ago, in October 2019—but the report has still not seen the light of day.
• Of 1,800 sexual harassment cases within the Department, 445 were at ICE and 382 were at CBP.
• The unpublished OIG report found that DHS agencies paid 21 employees nearly $1 million in settlements from sexual harassment-related complaints over six years, but there are few records of any investigations or disciplinary actions against the aggressors. One victim received a $255,000 payout. Senior officials at the OIG objected to mentioning these settlements in the as-yet unpublished report.
• The unpublished OIG report notes that “women made up only 5 percent of CBP’s Border Patrol workforce,” well below the federal law enforcement average of 15 percent.
• Another OIG report, published in 2020, covered DHS law-enforcement personnel found to have committed domestic violence when off duty. Inspector-General Joseph Cuffari and his staff pushed to withhold many key findings that had appeared in this report’s earlier drafts. Initially, the report found that agents who committed domestic abuse received “little to no discipline.” In an internal memo, Cuffari ordered that removed, calling it “second-guessing D.H.S. disciplinary decisions without full facts.” This language is troubling, as second-guessing disciplinary decisions is something that inspectors-general are often compelled to do.
• Employing law enforcement personnel with a demonstrated propensity for abusing domestic partners and family members places at risk the other populations these personnel might encounter, like migrants. “It raises questions about someone’s fitness for the job if they abuse someone they have committed their life to,” James Wong, a former CBP deputy assistant commissioner for internal affairs, told POGO. “How are they going to treat a total stranger they have no relationship with? Who’s going to stop them?” The OIG report’s draft had raised concerns that allowing these agents to keep their weapons “put[s] victims and the public at risk of further violence,” but Cuffari ordered that language removed for risk of “appearing biased.”

POGO, a non-governmental watchdog group, has published past reports and allegations critical of Cuffari, whom Donald Trump named to the DHS Inspector-General post in 2019. “The suppressed DHS watchdog reports on sexual misconduct and domestic violence are part of a pattern where Cuffari has appeared unwilling to oversee his department as an independent watchdog,” POGO’s report contends. “Sadly, Cuffari himself has an undeniable pattern of removing significant facts and evidence from major reports. As a result of this pattern, his independence and impartiality are in question.”

In other CBP accountability news:

• NBC reported an October 2021 letter from a National Archives and Records Administration official voicing strong concern about Border Patrol agents’ and CBP officers’ use of Wickr, an Amazon-owned encrypted messaging app that automatically deletes messages. CBP has spent more than $1.6 million on Wickr subscriptions for its personnel since 2020. “This has had real consequences for accountability by impeding investigations and oversight of the agency’s activities,” said Nikhel Sus of Citizens for Responsibility and Ethics in Washington (CREW), which has filed a lawsuit against CBP to obtain records about the agency’s implementation of Wickr.
• On April 4, border-district Reps. Raúl Grijalva (D-Arizona) and Veronica Escobar (D-Texas) sent a letter to CBP Commissioner Magnus “urging him to implement measures that would increase accountability and transparency within the agency.” Four other House Democrats, including two whose districts touch the border, joined the letter, which includes a long list of issues and steps that the agency should address in order to treat “migrants, border community residents, and all others who encounter CBP with dignity and respect.”

 

Links

• WOLA published two resources this week. Adam Isacson of the Defense Oversight program reflected, based on recent fieldwork in Tamaulipas, Mexico, on how current policies directly benefit Mexican organized crime. Kristen Martínez-Gugerli of the Venezuela program gave an overview of recent Venezuelan migration, including Mexico’s recent reinstatement of visa requirements and increasing travel through Panama’s treacherous Darién Gap.
• Colombian authorities told Camilo Montoya-Galvez of CBS News that the United States has expelled or removed 1,800 Colombian migrants by air since a flight program intensified in early March. The latest monthly flight-monitoring report from Witness at the Border counted 10 U.S. expulsion or removal flights to Bogotá during March—up from 2 in February—with 9 of them occurring between March 11 and 31.
• Citing UN Migration Agency data, Montoya-Galvez also found that U.S. authorities had sent 1,958 asylum seekers across the border into Mexico under the “Remain in Mexico” program, which restarted under a Texas federal court’s order in early December. (That number, up from less than 900 at the end of February, could be too high, as it may double-count those who return to Mexico after their initial U.S. hearings.) “A senior DHS official said the US will enroll more migrants in the program once Title 42 is lifted,” Montoya-Galvez added.
• As of April 3, CBP had apprehended an average of 346 unaccompanied children per day at the U.S.-Mexico border during the previous 30 days, and was holding 436 in short-term custody. Another 10,326 children were in shelters managed by the Office of Refugee Resettlement (ORR). While a historically high number, this is much fewer unaccompanied kids than a year ago. On April 2, 2021, the 30-day average was 505 apprehensions, 5,381 children were in CBP custody, and 13,359 were in ORR shelters.
• At Texas Monthly, James Dobbins profiles “Patriots for America,” a heavily armed far-right militia group that has been patrolling the border with the support, or at least the toleration, of authorities in Kinney County, Texas.
• The Departments of Justice, Homeland Security, and State held a “Smuggling Roundtable” in Mexico on April 4-5, with counterparts from Mexico, El Salvador, Guatemala, and Honduras. A Justice Department release offers little detail about what the event achieved. Secretary of State Antony Blinken, meanwhile, will visit Panama within two and a half weeks for a meeting with regional foreign ministers to discuss migration.
• 72 Ecuadorian migrants have disappeared in Mexico or the United States during their northward journeys between 2019 and 2021, according to a BBC report. The actual number is likely greater: 72 is only the number of disappearances reported to Ecuadorian authorities.
• Expediente Publico counts 284,000 Nicaraguans—about 4 percent of the country’s population—who have fled to other countries since a vicious government crackdown on protesters in 2018. The main destinations are the United States and Costa Rica, with others going to Spain, Panama, and Mexico.
• Ursula Roldán, a migration expert at Guatemala’s Rafael Landivar University, told Reuters that U.S. deportations of Guatemalans have dropped even as Guatemalan emigration continues at high levels. “It’s not that people aren’t trying to leave Guatemala. It’s that the containment is in Mexico, at the southern and northern borders. That’s where the problem is building.”
• Mexican migration agents and National Guard personnel confronted, then broke up a migrant caravan in the southern state of Chiapas, apprehending 701 people including 126 women and 75 children. The group included citizens of Haiti, Venezuela, Cuba, Honduras, El Salvador, Nicaragua, Brazil, Chile, Dominican Republic, Senegal, Colombia, Ecuador, Guyana, Argentina, Uruguay, Bangladesh, Peru, and Mauritania. This caravan was the latest edition of the “Migrant Via Crucis,” an annual event begun by Mexico-Guatemala border zone advocacy groups to draw attention to migrants’ plight in the weeks before Easter. The 2018 Migrant Via Crucis became a fixture on Fox News and an obsession of then-president Donald Trump.