Ad-hoc expulsions go global as migrants bused to Guatemala—08-13-21

Immigration news, in context

This is the ninety-first edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

• In The Big Picture, we look into the Biden administration’s decision to begin expelling migrants to the Mexico-Guatemala border.

• In Under the Radar, we discuss the death of an asylum seeker in ICE custody.

• In Next Destination, we analyze the future of the budget reconciliation process, which could potentially regularize the status of millions of undocumented immigrants. 

The Big Picture

The news: As we noted last week, the U.S. government had begun Central American putting families subject to the Title 42 expulsion order onto chartered flights to southern Mexico, an unprecedented step that was meant to deter them from attempting to cross the border to seek asylum again. This was done under the apparent understanding that Mexico itself would offer asylum protections to the expelled migrants. However as The Washington Post’s Kevin Seif and others reported, Mexico immediately bussed hundreds of migrants across the border to Guatemala, with no chance to tender an asylum application and seemingly no real record of this second expulsion.

What’s happening?

Immigration enforcement historically used to be much more ad hoc, particularly around national borders, with early-to-mid-twentieth century Border Patrol adopting somewhat of a wild west mentality (more on that below). In contemporary times, however, it’s supposed to be a formalized, bureaucratic process, conforming to rigid national and international standards, producing detailed paperwork, justifying every outcome. That’s in theory; in practice it has always been a heavily politicized system—see the Cold War’s near-absolute asylum grants for those escaping Soviet or communist governments while migrants fleeing U.S.-supported right-wing dictatorships were routinely denied. Still, even nakedly anti-immigrant measures are supposed to have some tenuous legal standing.

In this instance, all that seems to have gone out the window, with the U.S. turning migrants expelled under a probably-illegal sham of a public health order over to Mexican authorities with at least an inkling that they would then be illegally expelled again, this time to a tiny Guatemalan border town with a migrant shelter with a capacity for thirty people and no way of getting anywhere. The administration has referred questions about the Guatemala expulsions to Mexico, but it’s doubtful that this completely blindsided them. Even if it had, some U.S. officials have said that the plan is to massively ramp up the number of expulsions flights to southern Mexico, to over 24 a month, meaning that at minimum the Biden administration is perfectly okay with hundreds of expelled families being unlawfully expelled to Guatemala.

By having this chain of expulsions take place, the U.S. is able to kill several birds with one stone: it puts the entirety of Mexico as a de facto border security measure standing in the way of these migrants’ ability to try again; it gets them far away from local aid groups and reporters for U.S. outlets (though fortunately many of our colleagues are still diligently finding and talking to these folks); the government has the ability to claim ignorance, as the last leg of the expulsion was handled by Mexican, not U.S., authorities; having nowhere to go and having likely already spent their savings getting to the U.S. border in the first place, migrants are likely now to simply give up.

In another rare rebuke, after having initially condemned the Title 42 program in May, the U.N. High Commissioner for Refugees had issued a statement expressing concern over the expulsion flights to southern Mexico, pointing specifically to the increased “risk of chain refoulement,” i.e. the possibility of several states successively pushing back people seeking protections from persecution. Migrants who have landed in El Ceibo, the Guatemalan town to which they’re being expelled, describe not having been told where they were going and being dropped off by Mexican authorities with essentially no guidance or explanation. They’re effectively being rendered invisible to the humanitarian systems that by law are directed to intervene; the migrants are no one’s responsibility.

Meanwhile, the first flights of Guatemalan families deported under expedited removal have begun arriving in Guatemala City. The rapid deportations, unlike expulsions, carry the full legal consequences of a deportation and will likely prevent any of these families from ever successfully attempting to enter the United States again. Though the policy was announced in late July, it had been unclear when exactly it would be implemented; it now appears that it took practically immediate effect, with families reporting a process lasting a week or less between entering the U.S. and being put on a deportation flight back to Central America.

How we got here

The 1924 Immigration Act—a patently racist, eugenicist piece of legislation that all but ended immigration from Southern and Eastern Europe in an attempt to keep America white (and “Nordic”)—established the U.S. Border Patrol. At that point, migration to the U.S. from Mexico was a secondary concern; nativists were more worried about the presence of Chinese, Jewish, Italian, Irish, and Slavic immigrants. But from its inception, Border Patrol’s main focus was the U.S.-Mexico border. The agency’s first hires in the U.S. Southwest were recruited from local police departments or the Texas Rangers, which, as historian Greg Grandin wrote for The Intercept, have their own long traditions of unaccountable brutality. A subsequent law, passed in 1929 and authored by a segregationist senator, made it a crime to cross the border without authorization, giving the newly established Border Patrol’s officers massive discretion over which crossings were legal and, as a result, over who to prosecute. 

By the middle of the twentieth century, concerns over Mexican migration were mounting. During World War II, the U.S. set up the Bracero program, a labor agreement with Mexico through which tens of thousands of Mexican workers came to the U.S. on a temporary basis. Under the Bracero program, workers would come to the U.S. from Mexico on a seasonal basis and go back home once their contracts were up. But many ended up building lives in the U.S. and staying, often without authorization. In 1954, the Immigration and Naturalization Service implemented a new policy, dubbed “Operation Wetback,” to return unauthorized Mexican immigrants to their country of origin. But the program targeted Mexicans and Mexican-Americans indiscriminately, and many of those deported to Mexico were U.S. citizens.

For decades, Border Patrol has fostered a culture of impunity. As Grandin’s piece for The Intercept shows, it wasn’t uncommon for agents to physically abuse and even kill migrants or suspected migrants, nor was it uncommon for Border Patrol agents to be members of their local Ku Klux Klan chapters or to maintain ties with other vigilante groups. 

All of this is to say that border enforcement in the U.S. has long been effectively up to the discretion of individual agents, and that those agents have often flouted the law in their attempts to “secure” the border. What we’re seeing today is a top-down measure, but the decision over whom to expel is still ultimately up to individual officers. Notably, even though the U.S. has begun expelling migrants to southern Mexico in an attempt to prevent them from trying to cross the border again, overall expulsions are actually declining, according to CBP data. In July, nearly 47 percent of migrants encountered at the border were expelled, compared to 83 percent in January. 

Until recently, the Biden administration was largely expelling migrants to cities along the U.S.-Mexico border regardless of their country of origin. Some Haitian migrants are instead expelled directly to Haiti despite the growing political crisis there. The decision to expel migrants to southern Mexico so they can be quickly sent to Central America has echoes of yet another Trump policy: the so-called “safe third country” agreements with Guatemala, El Salvador, and Honduras. The Trump administration entered bilateral agreements with the three Central American nations, each of which was designed to send asylum seekers to tender their claims for relief there instead of the U.S. Under the agreement with Guatemala, for example, migrants from El Salvador or Honduras who tried to reach the U.S. would instead be flown to Guatemala and told to ask for asylum there. The Guatemalan agreement was the only one to fully go into effect, and it was disastrous. It was nearly impossible for migrants to apply for asylum there—and even when they did, they were often subjected to the same dangers that caused other migrants to flee Guatemala in the first place. The Biden administration suspended the three asylum agreements in February. Now it’s sending vulnerable asylum seekers to Mexico’s southern border, from which they’ll be sent to Guatemala, under the guise of COVID safety.

What’s next?

It remains very much unclear what exactly is going to happen to the hundreds of migrants left stranded in El Ceibo, especially as everything points to the impending arrival of hundreds more. As far as we know, no one has arranged ground transport or any other means to leave the town, which is hundreds of miles away from both El Salvador and Honduras. The extent of the Guatemalan government’s role and planning is murky; obviously, it would have to somehow accept the transport of migrants through its border, but it doesn’t appear to have done much in the way of preparations for their arrival.

In all likelihood, unless there is aggressive government intervention, this area will become yet another open-air refugee camp for the many people who have been turned away from humanitarian protections in the United States, except this one will be even farther from the U.S. voting public’s prying eyes to matter much to the administration from a political perspective. It’s even possible that Guatemala itself will attempt some expulsions itself, now that the door has been definitively opened to chain refoulement, as the U.N. put it.

It’s pretty evident that Mexico is violating the law with these expulsions, though it’s far from obvious who might be in a position to do anything about that. An interesting question is the extent to which the U.S. has any responsibility or liability here; the Biden administration is already the subject of an ACLU-led lawsuit challenging the constitutionality of the Title 42 policy. Does it make a difference that the administration is knowingly sending migrants to a situation where it has reason to believe they’re being subsequently unlawfully expelled to a third country? Probably not, for strictly legal purposes, but it also betrays a certain carelessness to international obligations.

As we noted above, this isn’t the first time the U.S. government has tried to send asylum seekers not only back to Mexico or their countries of origin, but by doing it by proxy here, it is washing its hands of the responsibility. Ultimately, it’s part of the border externalization and diffusion strategy that we’re always talking about, to offload and spread out the responsibility for preventing and punishing migration around enough until it becomes system-wide, with the system being practically the entire hemisphere. In doing so, no one is specifically culpable, because everyone is, and the odds of successfully making it through the gauntlet drop to the extent that it really might become effectively impossible for migrants to arrive in large numbers at the U.S. southern border.

Under the Radar

Asylum seeker who tested positive for COVID-19 dies in ICE custody

A 37-year-old woman from Nicaragua died in ICE custody on Tuesday after testing positive for COVID-19, BuzzFeed News’s Hamed Aleaziz reports. The woman’s cause of death has yet to be determined, but she had been hospitalized after testing positive for COVID. She is the fifth confirmed person to have died in ICE custody during the 2021 fiscal year, which began last October.

There were roughly 38,000 people in ICE custody in mid-March 2020. The number of ICE detainees dropped as the pandemic wore on. A federal judge ordered the agency to consider releasing detainees who had medical conditions that made them especially vulnerable to COVID-19. Others were deported to their countries of origin; although the pandemic shut down most aspects of our immigration system, deportation hearings for immigrants in detention continued. And because of Title 42 expulsions, the detainee population wasn’t as quickly replenished by migrants encountered at the border. 

By February of this year, ICE’s average daily population was 14,091—but since then, the number of detainees in ICE custody has been on the rise, according to federal data analyzed by César Cuauhtémoc García Hernández at Crimmigration. By the end of June, ICE’s average daily population had climbed to 29,085. The number of ICE detainees has dropped a bit last month; it hit just over 26,000 by the end of July. Still, people who have been held in ICE custody say the agency’s detention centers are hotbeds for COVID-19, and ICE’s own data bears out their claims.

Next Destination

Budget resolution passes Senate with immigration measures included

As we’ve discussed before, budget reconciliation seems to be the clearest path forward for achieving a regularization program for millions of undocumented immigrants for the first time since IRCA was signed by Reagan in 1986. This week, Senate Democrats approved a $3.5 trillion budget resolution that includes directions for "lawful permanent status for qualified immigrants" and "investments in smart and effective border security measures."

This resolution isn’t the budget itself, but rather instructions to committees for how to draft it, meaning that we still don’t have the full details of what it will include. In practice, it’s likely to provide paths to residency and citizenship for the groups that were initially floated: Dreamers (and perhaps legal Dreamers aging out of status); most people with TPS (and maybe DED); and essential workers who performed such work during the pandemic.

The inclusion of funds for border tech is unsurprising, given Democrat’s affinity for tying any type of immigration amnesty or reform to increased border enforcement. This is likely to take the form of investments in virtual wall technologies, i.e. radar, drones, artificial intelligence, sensors, and generally widespread and invasive surveillance along the southern border.

For now, a group of moderate House Democrats have threatened to tank reconciliation unless they are able to first vote on the $1.2 trillion infrastructure bill that the Senate also passed this week. It’s not clear how this is all going to pan out, but whatever reconciliation bill is produced, it will at least have immigration provisions in it.