This is the 131st 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 examine the rise in deaths among migrants attempting to cross the US-Mexico border and its causes.
In Under the Radar, we discuss the abrupt transfer of ICE detainees from a county jail in New York, in apparent retaliation for detain protests..
The Big Picture
The news: According to internal CBP figures leaked to the Washington Examiner, 609 migrants have officially been found dead on US territory along the southern border so far this fiscal year, more than the 566 deaths CBP recorded in the entirety of Fiscal Year 2021. The grisly revelation lays bare the consequences of a record of supposed deterrence policies that instead force migrants to take greater risks.
What’s happening?
The story notes that the reporter had asked CBP for numbers, which it claimed not to have, and was then given internal numbers by a source. The WashEx headline misleadingly proclaims that deaths “soar to new high under Biden” and goes to great lengths to lay the victims at Biden’s feet, but in truth the stage has been set by every successive president since Clinton, with Trump supercharging the conditions that led us here.
Before we get into that, let’s talk about what these numbers actually mean. The federal fiscal year actually begins in October, so the current fiscal year count runs from October 2021 until this month, not from January 2022. CBP is only collecting data on the people found on the US side, meaning that the migrants who have died while still on Mexican territory are not being counted, and it is certainly not a complete count. In fact, Congress specifically directed the Government Accountability Office to probe the agency’s collection and reporting of deaths due to suspected undercount; this April, the GAO issued a report concluding that CBP was indeed systematically failing to include full counts in its reporting of deaths. For example, in the Tucson sector alone, the GAO found CBP had likely failed to count hundreds of deaths between 2015 and 2019.
Other entities maintain their own counts. The United Nations’ International Organization for Migration, for example, recently put out a report noting that it had counted 728 deaths of migrants along the US-Mexico border in (non-fiscal) 2021. These would not only include those deaths on the Mexican side as well, but have a different methodology than CBP. In the UN’s estimation, 2022 is proving deadly with 493 deaths as of the start of this month, but has not surpassed the eye-popping 2021 figure.
In general, the real numbers are hard to pinpoint because, simply, not every person is found. Many people die in remote, inhospitable, and sparsely populated areas. If an asylum seeker dies of dehydration in the middle of the desert, their remains might not be found for months, if at all. Some of the bodies that have been found in the last year could well have belonged to people who’ve been dead for a year or longer. When bodies are found, they are handled and recorded by a variety of entities, mainly a disparate array of police agencies and medical examiners’ offices on both sides of the border, so trying to get an accurate top-line number entails getting accurate and up-to-date data from all of these sources, which isn’t easy.
The main point, though, is that the numbers are trending upwards. Both the UN and CBP have the numbers rising from the low 300s in 2014 to double or more now. The causes are multifaceted, having to do with policy, enforcement, and migrant demographics; for example, as time goes on, the average arrival to the border is more and more likely to be someone seeking to claim asylum from violence or corruption, as opposed to someone seeking temporary work and expecting to sooner or later return. Asylum seekers are often not hoping to evade border agents but instead turn themselves in, either at ports of entry or shortly after crossing.
Yet here’s where policy and enforcement change the dynamics: as Remain in Mexico, Title 42, and other restrictive border policies make it more and more uncertain that someone can successfully seek asylum, the incentives are shifting, pushing people back into a posture of wanting to evade capture. These, however, are no longer predominantly young, healthy workers but families with children and others who are at greater risk from the elements and the arduousness of the journey. This combines with an ever-more-expansive surveillance and enforcement apparatus to funnel people through areas where they’re more likely to die, or into the arms of smugglers who are generally unconcerned with their safety.
As we’ll explain in greater detail below, making crossing more difficult and more heavily militarizing or building barriers in areas where the trek would be safer has been a consistent strategy supercharged by Clinton and embraced by all subsequent presidents, with the aim of supposedly deterring crossings altogether. The issue with that is, the difficulty of the crossing is far from determinative about the decision to try. The risk is of course a factor, but asylum seekers in particular are fleeing from situations that they consider life-and-death already, and often have already uprooted themselves and often liquidated all their assets to trek north. Turning back rarely seems like a viable option, so the only way is through.
The constant churn of deaths doesn’t get much attention unless there’s a particularly gruesome event, such as the horrific spectacle of the discovery of 53 bodies, including children, in a tractor-trailer that had been smuggling migrants north through Texas and which was left abandoned by the side of the road. As the Associated Press reported in the aftermath, the migrants had come from all around Mexico and Central America in search of opportunities and safety in the US, but ended up at the mercy of apathetic smugglers. These sorts of mass casualty events capture public attention but also sort of skew the perception of how most people die crossing, which is in smaller numbers and in circumstances also including drowning, heat exhaustion, dehydration, and violence perpetrated by organized crime along northern Mexico.
How we got here
Migrant deaths used to be uncommon; like mass immigrant detention, deportation as a consequence for minor crimes, and several other facets of our immigration system, they’re a relatively new phenomenon that quickly became accepted as the norm. Until the 1990s, most unauthorized migrants entered the US through urban border cities like El Paso, Texas and Nogales, Arizona. Sometimes they’d cross with a smuggler, or coyote, but it was common for people to make the journey alone. That’s not to say that the journey was easy or without risks, but the numbers prove that border deaths were far less common then than they are today. In Pima County, Arizona alone, there were 224 migrant deaths in 2010, compared to 11 in 1994.
From an enforcement standpoint, once a migrant made it into a US border city, it was easy for them to blend in and evade detection. In 1993, Border Patrol implemented Operation Blockade in the El Paso sector. Rather than responding to crossings after the fact, the agency hoped to prevent them by stationing agents in urban areas as a deterrence tactic. Instead of reducing crossings altogether, Operation Blockade funneled migrants into more remote areas of the desert. Nonetheless, Border Patrol considered it a success and replicated it along the border. It was called Operation Gatekeeper in San Diego, Operation Rio Grande in McAllen, and Operation Safeguard in Tucson. The broader strategy, dubbed “prevention through deterrence,” was explicit in its aims: migrants would be “forced over more hostile terrain, less suited for crossing and more suited for enforcement,” as laid out in a 1994 Border Patrol planning document.
It didn’t take long for deaths to rise. A 2003 Government Accountability Office report found that “rather than being deterred from attempting illegal entry, many aliens have risked injury and death by trying to cross mountains, deserts, and rivers.” The rise in deaths “prompted the Border Patrol to implement a Border Safety Initiative consisting of, among other things, a media campaign to warn aliens about the dangers of crossing illegally, as well as establishing search-and-rescue units.”
These efforts did little to prevent border deaths, because the underlying problem has persisted: people want to come to the United States, and most lack the ability to do so legally. There is no “line” to get into or process through which the average person without a job offer, financial resources, or US citizen relatives can apply. There is a process for asylum seekers, but as we noted above, several government efforts, from the “zero-tolerance” family separation policy to Remain in Mexico to Title 42, have disrupted it. Few asylum seekers know the steps they have to follow; smugglers thrive on their confusion and, increasingly, their fear. Title 42 has cut most people off from accessing the asylum system altogether and Remain in Mexico has ensured that some of those who do are barred from entering the US at all unless they win their case—typically without a lawyer or access to other forms of assistance. As a result, migrants and asylum seekers alike have increasingly opted to cross between ports of entry.
Asking for asylum after crossing the border without authorization does not make a claim any less valid; the law is very clear about this. Still, successive presidential administrations have sought to increase penalties for people who cross between ports of entry, regardless of whether they plan to seek asylum. Prosecutions for illegal entry skyrocketed between the 2007 and 2008 fiscal years, and reached an all-time high of more than 106,000 during fiscal 2019, according to federal data analyzed by the American Immigration Council. The Trump administration used illegal entry prosecutions to separate migrant parents from their children in 2018, though some of the families who were separated asked for asylum at ports of entry.
Yet another deterrence tactic, expedited removal, also dates back to the Clinton administration. Like many other aspects of our immigration policy, it was created as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Expedited removal was first used to quickly return migrants apprehended at the border; in 2004, it was expanded to include people apprehended within 100 miles of the border who couldn’t prove they had been in the US for at least 14 days. The Trump administration further expanded expedited removal. Under a new asylum process implemented under the Biden administration, people who file claims are referred to US Citizenship and Immigration Services for processing, while everyone else is put in expedited removal proceedings.
While some hailed the new asylum policy as a way of cutting down on the staggering backlog of immigration court cases, it requires migrants to affirmatively ask for asylum, which many don’t know they have to do. Moreover, a new report from the Dallas Morning News reveals that some Border Patrol agents fraudulently fill out migrants’ interview paperwork. In one instance, a two-year-old boy’s paperwork claimed that he said he was coming to the United States to work, was planning on going to Dallas, and had no fear or concern of being returned to El Salvador.
These removals come at a significant cost: people who are deported from the US after being apprehended at the border generally face a bar on re-entry for a minimum of five years. (The re-entry bars are also a result of IIRIRA; others are banned from re-entering the US for 10 or 20 years depending on the specifics of their deportation.)
Given these legal and logistical hurdles, migrants—both asylum seekers and those coming to the US for other reasons—have increasingly relied on smugglers. As Mexican criminal networks have become more organized and professionalized, so too has migrant smuggling. It’s a multi-billion dollar industry that, like the drug trade, exists because of criminalization, not in spite of it. That said, no single entity controls the entirety of the border. Migrant smuggling is a highly localized industry; the groups responsible for getting migrants from Tijuana to San Diego aren’t necessarily the same ones who cross migrants through Texas or Arizona.
This has given rise to another deterrence tactic: lateral deportations (or, in official jargon, the Alien Transfer Exit Program—ATEP for short). Lateral deportations are used against one specific group: Mexican men. For example, if a man crosses in Tucson, he may be flown to El Paso or Nogales before being deported. The idea is to separate people from the smuggling networks that enable them to make subsequent crossing attempts. In practice, this also means the US government is delivering migrants to areas under the de facto control of gangs or other criminal groups—and often putting them in harm’s way.
Deaths in the borderlands are the result of two complementary trends: the US government’s refusal to open new avenues for legal migration, and its subsequent efforts to make crossing the border without authorization as difficult as possible.
What’s next?
There is, unfortunately, simply a proportional relationship between how difficult it is to access safe and straightforward humanitarian migration pathways and how likely it is that someone will die trying to get across the border. Paired with growing numbers of asylum seekers and a changing climate that is already creating harsher conditions along the border region, this means more bodies to be found by local police and border authorities.
As exemplified by the response to the tractor-trailer tragedy, immigration restrictionists and Biden’s political enemies will use the deaths as a cudgel for insisting that we need more border militarization and enforcement, choosing not to make the connection between that heavy-handed enforcement and the fact that more than 60 people were driven to put their trust in smugglers who took their money to stuff them into an unsafe deathtrap.
As we’ve noted before, empathy for migrants putting their lives on the line for a better future seems entirely contingent on the political points that can be scored off their suffering; if a restrictionist commentator or political figure thinks they can score a victory over fear-mongering about asylum seekers, they will. If they can score points over pantomiming sadness over their deaths and blaming Biden’s policies, they’ll do that too. In both cases, their solution is the same—to increase so-called border security, with more agents, more drones, more cameras, a bigger wall. The administration seems all too amenable to falling for it, such as with the recent decision to erect more border wall in the Yuma sector despite a campaign promise not to.
The only thing that might reverse the trend of increasing deaths would be an opposite strategy of reinstating real access to the asylum system and not intentionally attempting to funnel people to the deadliest areas of the border, which would necessitate a rethinking of enforcement strategy. To his credit, Biden in recent months has been moving in the direction of the former point at least, with attempts to wind down both the Migrant Protection Protocols, also known as the Remain in Mexico program, and the Title 42 expulsion order; however, he’s been stymied by Trump-appointed judges. In the case of MPP, the Supreme Court has already allowed the administration to terminate the program, but the often timid Biden administration has chosen not to actually do so until there is additional judicial action.
If and when Title 42 is terminated, the administration must at that point be fully ready to accommodate and process the increases in humanitarian migration that will undoubtedly follow. Not only will word spread that asylum is functionally available again, but there are thousands of people who have been essentially waiting to make an attempt until there is some certainty that they at least won’t be immediately expelled. If the response to an increase in migrants ends up being harsh enforcement, it will almost certainly drive up deaths.
Under the Radar
ICE transfers dozens of immigrants from New York to Mississippi detention facility
At least 33 immigrants detained at the Orange County Jail in Goshen, New York were transferred to a detention center in Natchez, Mississippi after complaining about conditions in the New York facility, Hell Gate reports. At least two others were sent to a detention center in Batavia, New York. The immigrants were not given notice that they would be transferred, nor were their families or attorneys, one lawyer claims. In a statement to Hell Gate, ICE said that the detainees were transferred as “part of a facility-wide reduction in population affecting all agencies that use the facility” after the Orange County government requested that ICE reduce its detainee population.
The immigrants’ attorneys are claiming that the transfers were retaliatory in nature. Regardless of intent, transferring immigrant detainees to remote locations harms them in several ways: it cuts off their access to family and legal counsel; it may require them to appear at their hearings remotely via videoconference; it could discourage others from speaking out about substandard conditions in their facilities.