Weekly U.S.-Mexico Border Update: Del Rio abuse report, AMLO visit, Darién Gap, migration numbers, Texas crackdown

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: CBP released a long-awaited investigation into the September 2021 incident in Del Rio, Texas, when horse-mounted Border Patrol agents were caught on camera behaving aggressively toward Haitian migrants. The report finds fault with agents’ behavior, Border Patrol command and control, lack of crowd control training, and other issues. Administrative punishments appear likely. President Biden and Mexican President Andrés Manuel López Obrador met in Washington on July 12. Mexico agreed to make $1.5 billion in border infrastructure investments over the next two years. There was no agreement on temporary work visas. 15,633 people migrated through Panama’s treacherous Darién Gap jungles in June, a number that has increased nearly every month this year. Almost three quarters of the migrants were Venezuelans who are now unable to fly visa-free to Mexico. The once-quiet Del Rio border sector appears poised to become the busiest, leading all others in migrant encounters, with more than 13,000 in an early July week. Most are not from Mexico or Central America’s “Northern Triangle.” An executive order from Texas’s governor, whose language adopts “invasion” rhetoric, empowers state law enforcement to apprehend migrants and transport them to border ports of entry. CBP CONCLUDES DEL RIO INVESTIGATION On July 8 U.S. Customs and Border Protection (CBP) released a long-awaited report on the September 2021 incident along the Rio Grande in Del Rio, Texas, when horse-mounted Border Patrol agents were caught on camera charging and swinging reins at Haitian migrants during a mass migration event. The investigation by CBP’s Office of Public Responsibility (OPR, a body that reports directly to CBP’s commissioner) found “failures at multiple levels of the agency, a lack of appropriate policies and training, and unprofessional and dangerous behavior by several individual Agents.” An outcry followed publication of the September 19 images and videos of mounted agents charging at, grabbing, swinging reins, yelling, and maneuvering the Haitians back into the river. Condemnation and promises of swift action came from President Joe Biden, Vice-President Kamala Harris, and Department of Homeland Security (DHS) Secretary Alejandro Mayorkas, among many others. “I promise you, those people will pay. There is an investigation underway right now and there will be consequences,” said Biden. Mayorkas promised that an investigation “will be completed in days—not weeks.” In fact, it took OPR nearly 10 months to produce its 511-page report. CBP Commissioner Chris Magnus, who took office last December, said he was “not happy about the length of time.” Much of the delay owed to the agency’s choice to treat the case as a criminal matter, referring it to the Department of Justice. The U.S. Attorney for the Western District of Texas considered it for nearly six months before deciding, on March 11, 2022, not to pursue criminal charges. During that long period, OPR was unable to interview the Border Patrol agents directly involved in the incident. What imprecisely became known as the “whipping incident” happened during an unusual immigration event. CBP noted that “over the course of several days, U.S. Border Patrol Agents processed, screened, and vetted more than 30,000 migrants by the international bridge” in Del Rio, a mid-Texas border city of 30,000 people that until recently had seen only modest levels of migration. Much of this population was Haitian: over the course of 2021, approximately 100,000 Haitian citizens who had been living in Brazil and Chile migrated north through Panama’s Darién Gap, then to Mexico. (Panama recorded 101,072 Haitians passing through the dangerous Darién in 2021, including children born in South America, while Mexico apprehended 18,924 Haitians and received asylum requests from 51,076.) In late August and early September (as noted in WOLA’s Border Updates at the time) thousands of Haitian migrants bottled up in Mexico’s far south organized “caravans” seeking to continue toward the U.S. border. Mexican forces broke these up, often brutally—but then, in mid-September, for reasons that don’t remain fully clear, roughly 15,000 mostly Haitian migrants were able to transit the country and arrive in Ciudad Acuña, Coahuila, across from Del Rio, over the same few days. The migrants forded the river, which had shallow areas at the time, and gathered by the thousands in areas near the border bridge. The mass arrival appeared to take CBP by surprise. Border Patrol, which had just 1,504 agents assigned to its once-quiet Del Rio Sector in 2020, surged personnel from elsewhere. Texas Gov. Greg Abbott (R), an immigration hardliner, deployed state police to Del Rio. While Abbott’s Texas Department of Public Safety (DPS) personnel appeared to be seeking to block migrants’ access, CBP was seeking to process the Haitian migrants on U.S. soil. (The Title 42 pandemic order has curtailed the right to seek asylum, so many of the Haitians “processed” in Del Rio ended up being among the more than 26,000 whom the Biden administration has flown back to Haiti.) Border Patrol, which could barely accommodate the thousands of migrants waiting to be processed on the banks of the river, was allowing them to cross into Mexico to buy food and water, then cross back. During the mid-day on September 19, though, journalists’ cameras caught members of a Border Patrol horse patrol unit, brought in from Carrizo Springs, Texas, aggressively seeking to block the migrants—many of them carrying bags of food—from re-entering the United States. “At the time the agents used or threatened to use force, the migrants were not threatening” the mounted agents, the OPR report found. The report includes the following findings about what happened over approximately a half hour on September 19. There was no evidence that the agents “whipped” the migrants or that the riders’ reins struck any migrants. In future crowd control events, though, CBP will prohibit mounted agents from “twirling” their reins as “a distancing tactic.” “Several mounted Border Patrol Agents used force or the threat of force to drive several migrants back into the Rio Grande River, despite the fact the migrants were well within the territorial boundary of the United States.” In addition to swinging reins, aggressive tactics included charging horses at migrants to keep them from entering, in one case maneuvering a horse very close to a boy, and in another causing a man to fall back into the river; grabbing a man by his shirt and flipping him around; and yelling “unprofessional” comments, including “Hey! You use your women? This is why your country’s s***, you use your women for this.” By pushing migrants back to the river and Mexico, the horse-patrol agents were following orders given not by Border Patrol, but a request from Texas state DPS. Though blocking migrants was not CBP’s objective, the Border Patrol supervisor approved the state agency’s request without checking with higher-ups. This owed much to faulty command and control within Border Patrol. The horse patrol agents’ supervisor “was unable to obtain additional guidance from higher in the USBP chain of command at the time of the request” from Texas DPS. The agents “repeatedly sought guidance from the USBP incident command post” by radio, and backed off after being “eventually told to allow all the migrants to enter.” Though assigned to a crowd control mission—a difficult job with a high risk of escalation and human rights abuse—the horse patrol unit’s members’ responses indicated that they had not received crowd control training. Commissioner Magnus said that from now on, horses would not be used for crowd control without the commissioner’s approval. With the OPR report complete, a CBP Disciplinary Review Board, separate from OPR and made up of senior officials, is now considering punishments for the agents involved. Four agents may face administrative measures. CBS News reported that no firings are recommended, and that the Review Board proposed a seven-day suspension for the supervisor who approved the Texas state DPS request. The agents’ defenders—including the National Border Patrol Council union, House Homeland Security Committee ranking Republican Rep. John Katko (R-New York), and several former Border Patrol leaders in a mid-June letter—argue that they are not receiving due process because President Biden had demanded in September 2021 that they “pay” for their actions. Border Patrol union President Brandon Judd said that the union will appeal any punishments. Commissioner Magnus said on July 8 that despite the “reins” incident, “the vast majority of Border Patrol Agents and U.S. Customs and Border Protection personnel acted with honor and integrity and provided an unprecedented response to the situation in Del Rio.” While that could be accurate for much of the Del Rio migration event, the OPR report’s scope does not go beyond what happened in the approximate half-hour on September 19 when the horse patrol was caught on camera. Much of the report, in fact, describes scenes that are already familiar to anyone who has reviewed the much-publicized footage. Migrant rights groups like the Haitian Bridge Alliance and Robert F. Kennedy Human Rights have documented other alleged abuses in the context of the Del Rio event. Critics of the OPR report have meanwhile lamented that investigators did not speak to a single Haitian migrant about what happened. Among those who would have been available is Mirard Joseph, the man whose shirt was grabbed by a horse-mounted agent in one famous image. Joseph was removed to Haiti and is suing the U.S. government. BIDEN AND LÓPEZ OBRADOR DISCUSS THE BORDER AND MIGRATION Mexican President Andrés Manuel López Obrador was in Washington on July 11- 12 for his second visit since Joe Biden took office. Much media attention focused on the frosty relationship between the two leaders’ administrations, who disagree on issues ranging from energy policy to the Ukraine conflict to the June Summit of the Americas’ invitation list. López Obrador’s 30-minute-plus oratory during the presidents’ Oval Office photo op also drew comment. Beyond that, the leaders did announce some agreements on migration, at a time of record numbers of migrants transiting Mexico and arriving at the two countries’ border. Mexico committed to spending $1.5 billion on new border infrastructure and so-called “smart” border technology between 2022 and 2024. While details haven’t yet been worked out, the spending appears to include port of entry improvements across from Yuma, Arizona and Otay Mesa, near San Diego, and improvements to screening. Mexico will not build any walls or barriers. The U.S. infrastructure spending bill passed in 2021 already includes $3.4 billion for 26 construction projects at U.S.-Mexico and U.S.-Canada land ports of entry. Mexico’s foreign affairs secretary, Marcelo Ebrard, insisted that the new spending is “to facilitate trade,” not to curb migration—though of course the same infrastructure can serve both purposes. Both countries will “convene a working group to strengthen our cross-border response to child migration.” Both countries “reaffirmed” previous commitments to help address the economic “root causes” of why migrants are leaving their countries of origin. The U.S. Departments of Justice (DOJ) and Homeland Security and Mexico’s Attorney-General’s Office will continue efforts to counter migrant smugglers, especially through the “Joint Task Force Alpha” mechanism DOJ rolled out in 2021. The presidents announced “a U.S.-Mexico operational task force to disrupt the flow of fentanyl.” President Biden said a “major anti smuggling operation” had led to more than 3,000 arrests since April. In the run-up to this meeting, Mexico had accelerated its seizures of methamphetamine labs, going from six seizures in May to seventy-two in June. There had been some expectation of an agreement on expanded temporary work visas for workers from Mexico and Central America. On June 22 Mexico’s interior minister had spoken of 150,000 visas for Mexican workers and another 150,000 for Central Americans. (Currently, according to the Migration Policy Institute, about 10,000 temporary visas are available each year to citizens of El Salvador, Guatemala, and Honduras.) López Obrador said on July 6 that during his Washington visit, “we’re going to legalize hiring of workers.” That ultimately did not happen. The leaders’ statement instead “reaffirmed our commitment to launch a bilateral working group on labor migration pathways and worker protections.” The day before departing for Washington, López Obrador said, “What needs to be done is to allow workers to come to the United States in an orderly manner, but they do not accept.” A July 11 letter from 87 U.S., Mexican, regional, and international civil society organizations, including WOLA, called on both presidents to restore the right to seek asylum at the U.S.-Mexico border, to facilitate access to legal immigration pathways including work visas, and to end violence and other abuses against migrants. What the leaders agreed on July 12 included few, if any, specific steps to meet these standards. The U.S. government’s desire for help in curbing high levels of migration gives Mexico leverage in the bilateral relationship. In comments to the Associated Press, Arturo Sarukhan, Mexico’s U.S. ambassador during the 2006-12 government of Felipe Calderón, called it the “Erdogan trap.” Turkey’s authoritarian leader Recep Tayyip Erdogan has forestalled EU and NATO pressure on many diplomatic issues, including human rights, because his government has agreed to take in hundreds of thousands of Syrian refugees and migrants who otherwise would have moved to Europe. DARIÉN GAP MIGRATION INCREASES AGAIN Panama’s migration authority released data through June detailing migration through the Darién Gap, a jungle region along the border with Colombia that is where the Pan-American Highway stops. The Darién is a barely governed area where violent criminal groups operate freely, preying on migrants. Those who dare to make the roughly 60-mile journey routinely report being robbed, beaten, or raped, and seeing dead bodies along the trail. A July 7 report from the Inter-Agency Coordination Platform for Venezuelan Refugees and Migrants (R4V), citing Panamanian authorities, found that “half of the refugees and migrants in transit through the Darién reported being victims of robbery or fraud during their journeys.” This year, most of the growing number of people taking the Darién route are Venezuelan. 11,359 Venezuelan citizens passed through the Darién in June, more than ever before, according to Panama’s official data. That is nearly 3 out of 4 (73 percent) of the 15,633 people who took this once-avoided route just last month. Nearly 50,000 people migrated through the Darién during the first half of 2022. That’s on pace to be second only to 2021, when 133,726 took this dangerous route. Last year, three-quarters of migrants were Haitian. This year, nearly 60 percent are Venezuelan. In the Costa Rica-Panama border town of Paso Canoas, Venezuelans made up 85 percent of all 13,248 migrants and refugees measured in May, according to the R4V report. That was triple the number of Venezuelans in April. Survey data in late 2021 and early 2022 had found that most Venezuelan migrants transiting Central America and Mexico had lived in other South American countries after fleeing Venezuela. The flow is different now, according to the R4V report: more Venezuelans are departing Venezuela and heading directly toward the United States. Venezuelans seeking to migrate north used to be able to skip Darién’s dangers and fly to Mexico, as long as they had passports and the funds to purchase a ticket. But in January 2022, at strong U.S. suggestion, Mexico started requiring visas of arriving Venezuelans, as WOLA reported in April and May, Refugees International reported in June, and Human Rights Watch reported on July 5. Most now have to take the land route. Growing numbers of migrants taking the Darién route are coming from Africa: 6,188 so far in 2022. Many came from Angola and Senegal earlier in the year. In recent months, more migrants are coming from Ghana (west Africa) and Somalia (east Africa). HEAVY MIGRATION IN DEL RIO, TEXAS Of the nine sectors into which Border Patrol divides the U.S.-Mexico border, the Del Rio Sector, in rural Texas, had been one of the quietest. Between 2000 and 2020, agents there only apprehended more than 100,000 migrants twice—in 2000 and 2001. For most of the 2010s, apprehensions hovered around 20,000 per year. (The largest border towns in the Del Rio Sector are Del Rio and Eagle Pass, Texas. Until recently, the area was perhaps best known as the setting of the book and movie No Country for Old Men. The sector also includes Uvalde, the site of the May 24, 2022 school shooting tragedy, about an hour from the border.) Smuggling routes have shifted dramatically, though. In the first eight months of the 2022 fiscal year (October 2021-May 2022), Border Patrol has encountered 280,622 migrants in Del Rio. Arrivals appear to be increasing further: Fox News correspondent Bill Melugin tweeted on July 12 that the sector reported “a staggering 13,000+ illegal crossings in the last week,” with Border Patrol holding twice as many migrants as its capacity. 13,000 encounters is far more than the 8,400 that week in the next-busiest sector, south Texas’s Rio Grande Valley. The Rio Grande Valley has been the number-one sector for CBP’s migrant encounters in every month since February 2013, with the lone exception of January 2022, when Del Rio was narrowly ahead. Remarkably, this remote part of Texas, with 1,504 Border Patrol agents assigned to it in 2020 (6th among the 9 U.S.-Mexico border sectors that year), is now poised to become the busiest sector along the border. “Over the last 24 hours, around 2,200 migrants were apprehended across the Del Rio sector, almost 1,000 more than the RGV during that same time,” CNN’s Priscilla Álvarez tweeted on July 13. A CBP official told her, “We haven’t seen these numbers since the Haitian migrant crisis” of September 2021, discussed above. CBP announced on July 13 the opening of a new “soft-sided” (tent-based and presumably temporary) facility in Eagle Pass, to process migrants in the Del Rio Sector. The 153,300 square-foot facility, sitting on a 24-acre site, has a capacity of 1,000. Meanwhile, across the Rio Grande from Eagle pass, in Piedras Negras, Mexico, a waiting list of migrants hoping to approach CBP’s port of entry “ballooned to 2,000 before being halted,” the Associated Press reported this week. Much of the growth in migration to Del Rio is citizens of countries who were rarely encountered before the past two years or so. Only 43 percent of migrants encountered so far this year in the sector come from Mexico, El Salvador, Guatemala, or Honduras, the countries that combined for over 90 percent of migrant encounters during every year until 2020. The countries whose citizens Border Patrol has encountered in Del Rio at least 1,000 times so far in fiscal 2022 are: Mexico 73,445 Cuba 51,578 Venezuela 50,477 Honduras 34,000 Nicaragua 29,879 Colombia 12,677 Other countries 10,348 Guatemala 6,931 El Salvador 5,100 Haiti 3,748 Ecuador 1,393 A similar international diversity characterizes southwestern Arizona’s quiet-until-recently Yuma Sector, whose chief tweeted that agents there encountered 5,800 migrants from 42 different countries between July 3-9. “Migrants from all over the world, including many families with children, arrive in groups of 60 to 100 between midnight and dawn,” turning themselves in to Border Patrol to ask for asylum, reported the Washington Post’s Nick Miroff, who visited recently. Miroff noted a sharp contrast with Arizona’s neighboring Tucson Sector, which “is used [by smuggling organizations] mostly for young men from Mexico,” most of them seeking to avoid being apprehended. The Del Rio, Rio Grande Valley, and Yuma numbers reported here point to at least 27,200 migrant encounters in these three sectors in a week, or 3,886 per day. In May, these sectors averaged 3,988 per day—so that busy early July week may actually have seen a slight decrease. TEXAS SEEKS TO USE STATE FORCES TO BLOCK MIGRANTS Texas Gov. Greg Abbott (R), a vociferous critic of the Biden administration’s border and migration policies who is up for re-election in November, took the latest of a long series of steps seeking to curb migration to the state. A July 7 executive order calls on Texas’s National Guard and state police (Department of Public Safety, DPS) to apprehend undocumented migrants and transport them to border ports of entry, turning them over to CBP personnel. “In other words, the order stops just short of authorizing Texas Guardsmen and police to carry out deportations,” observe Katherine Yon Ebright and Joseph Nunn of the Brennan Center. As of July 11, Abbott said that “close to 200 have been returned.” Once turned over to CBP at ports of entry, migrants who can easily be expelled under Title 42—mostly Mexicans, Salvadorans, Guatemalans, Hondurans, and some Cubans, and Nicaraguans, plus many Haitians by air—face a significant probability of expulsion. Others, though, will be processed under normal immigration law, which for asylum-seeking families and many asylum-seeking single adults means release into the United States pending adjudication of their cases. “Abbott’s order seems to be significantly more bark than bite,” wrote Aaron Reichlin-Melnick of the American Immigration Council. “It orders state law enforcement to take migrants to ports of entry but doesn’t say what to do when they get there. If they drop off migrants for U.S. Customs and Border Protection, then the order would amount to mostly shuffling people from one location to another.” Abbott’s executive order accuses the Biden administration of having “abandoned” the constitutional duty to protect the country from “invasion.” This comes close to, but stops short of, extreme activists’ calls to invoke war powers to stop migrants, a step that would trigger a constitutional crisis. This is the latest initiative under Abbott’s so-called “Operation Lone Star” (OLS), a series of border crackdowns first launched in March 2021. OLS has built miles of fencing, jailed thousands of migrants on state trespassing charges, and deployed 10,000 National Guardsmen and about 1,000 state police to the border zone. The Dallas Morning News reported this week that OLS “is already running a tab of more than $4 billion,” and that the Texas Military Department is asking for another $1.35 billion because its budget will run out in September. Meanwhile the federal Department of Justice, the Texas Tribune and ProPublica revealed, is now carrying out an investigation of OLS for alleged civil rights violations. Rep. Veronica Escobar of El Paso, Texas (D) confirmed that an investigation is ongoing. The Dallas Morning News reported that Mexican border-state governors, under pressure from Abbott and OLS, have been taking cruel measures to block the flow of migrants to the U.S. border. These have included “violent attacks, extortion and even forcing migrants to disembark from private buses and continue their journey on foot for miles in temperatures that top 100 degrees.” Abbott’s latest executive order is of very questionable legality. “The Supreme Court has long held that creating and enforcing immigration policy is ‘unquestionably’ and ‘exclusively’ a federal power,” write Ebright and Non. “And Congress has prohibited states from performing immigration enforcement except at the direction of the U.S. Attorney General or with the consent of the Immigration and Naturalization Service.” John Yoo, a University of California-Berkeley law professor known for authoring memos justifying torture when serving as a Bush administration official, called Abbott’s executive order “quite clever.” In his view, Abbott could be forcing a now more-conservative Supreme Court to revisit a 2012 decision that struck down an Arizona state law giving state and local police a role in enforcing federal immigration laws. A White House statement did not bring up the legality question, instead vaguely criticizing Abbott’s order as “a logistical nightmare” that “doesn’t give us confidence.” Mexican President Andrés Manuel López Obrador offered some of the strongest criticism of Abbott’s order. “He is overstepping the limits,” López Obrador told a press conference (English/ Spanish). “He is not in a position, legally, to make such a decision. There are elections in November, so they’re looking to sensationalize this. They cannot count on us because, even though we are respectful of the sovereignty of the countries, we don’t support that there are anti-immigrant campaigns for electoral purposes. I consider it immoral…politicized.” For more information, contact us at: http://www.beverlyhillsimmigrationlaw.com/index.html