- Border apprehensions in January fell to about 36,000 — 75 percent lower than in May 2019, and the lowest number in almost two years.
- The major driver for illegal migration is the opportunity for those migrants to be released from DHS custody and remain and work in the United States indefinitely. Large numbers of aliens could not be detained in FY 2019 due to a lack of DHS resources, which were strained by the wave of migrants who were apprehended by CBP. The decline in apprehensions has reduced those strains, and allowed DHS to use its resources more effectively.
- A number of factors likely led to the decline, but two stand out: Mexico's enforcement of its southern border and efforts to enforce its own immigration laws; and a series of initiatives that the Trump administration has introduced to remove the incentives to illegal entry.
- Through Electronic Nationality Verification (ENV), CBP can quickly remove nationals of major source countries who do not have a fear of return.
- The third-country transit bar to asylum limits asylum claims from nationals of countries other than Mexico (OTMs).
- The asylum cooperative agreement (ACA) with Guatemala allows DHS to send third-country nationals to that country to apply for asylum.
- Prompt Asylum Claim Review, or PACR, allows DHS to quickly review OTM fear claims. It is facilitated by and complements the third-country transit bar. Migrants from countries subject to ENV can thereafter be quickly removed from the United States.
- The Humanitarian Asylum Review Process (HARP), which is similar to PACR, allows DHS to quickly review fear claims by Mexican nationals. Migrants who are found not to have meritorious claims can be quickly returned.
- The Migrant Protection Protocols (MPP) allow DHS to return OTMs who entered across the Southwest border to Mexico to await their removal proceedings.
On February 4, 2020, AP reported that the number of U.S. Customs and Border Protection (CBP) border apprehensions dropped in January for the eighth month in a row, down from 144,116 in May 2019 to "about 36,000". This is the lowest number of apprehensions in almost two years, and represents a 75 percent drop over that nine-month period. While any number of factors have contributed to this decline, a number of initiatives advanced by the administration to limit the flow of migrants to the United States and reduce the incentives for foreign nationals to undertake the journey to enter the United States illegally have, without a doubt, played a significant role.
AP references three of those initiatives, although there are others, equally important, that the outlet did not discuss.
One initiative that AP did mention was the administration's diplomatic outreach, which has encouraged the Mexican government to strengthen its southern border and enforce its own immigration laws. As AP puts it, Mexico has "stepped up its own border enforcement, making clear that caravans that once traveled through its territory are no longer allowed to do so, following intense pressure and threatened trade tariffs from Washington last year."
In September, then-Acting DHS Secretary Kevin McAleenan described the Mexican government's efforts as the "single biggest factor" in interdicting and disrupting the flow of migrants to the United States. According to McAleenan, those efforts have included:
[T]he deployment of nearly 25,000 troops under the new Mexican National Guard; a focus on increased presence along the Chiapas-Guatemala border; stopping the conveyer belt of large groups to the U.S. border; disruption of key transportation hubs, and, importantly, a dramatic rise in human smuggling arrests and prosecutions.
The Mexican government has also increased its capacity to provide humanitarian relief to migrants seeking protection who would otherwise have sought asylum in the United States, in accordance with its international responsibilities.
On November 12, 2019, my colleague Jason Peña reported: "Through October, 62,299 people have applied for asylum in Mexico this year, nearly triple the 21,057 who applied during the same period last year. The number of applicants so far this year exceeds the previous six full years combined." As my colleague Todd Bensman reported in January, however, many migrants are applying for asylum in Mexico hoping that Donald Trump loses the 2020 election, so that they can enter illegally when his policies have been reversed. But at least Mexico is trying.
AP also listed a second initiative, the third-country transit bar to asylum, as a factor in the decrease in apprehensions along the border in January. That bar, implemented by regulation, limits asylum eligibility for aliens who have entered or attempted to enter illegally across the Southwest border without first seeking asylum or protection under the Convention Against Torture (CAT) in a third country (that is, a country that is not the one from which they are seeking asylum or CAT) they passed through en route to the United States. In other words, it prevents aliens, other than Mexican nationals, who entered illegally over that border from receiving asylum.
An injunction of that regulation, issued by a federal district court judge in California in July, was stayed by the Supreme Court in September pending a full disposition of that case. By limiting the opportunities for foreign nationals to remain in the United States indefinitely by filing weak or meritless asylum applications, that bar has plainly contributed to the decline in illegal entries.
Another initiative that AP credited with the decrease in CBP apprehensions is the Migrant Protection Protocols ("MPP" or "Remain in Mexico").
On December 20, 2018, then-Secretary of Homeland Security Kirstjen Nielsen announced that the Department of Homeland Security (DHS) would begin implementing MPP, issuing policy guidance for that plan on January 25, 2019. The department explained that under MPP:
[C]ertain foreign individuals entering or seeking admission to the U.S. from Mexico — illegally or without proper documentation — may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.
MPP was enacted in accordance with sections 235(c)(2)(A) and (C) of the Immigration and Nationality Act (INA). The latter section of the INA allows DHS to return an alien deemed inadmissible back across the border pending removal proceedings to the country from which they sought admission, in this case, Mexico.
The reduction comes at a cost. More than 55,000 asylum seekers, including families and pregnant women, have been sent over the border to Mexico to wait out their asylum cases and have faced sickness and squalid conditions in makeshift camps, plus assault and kidnapping by cartels that patrol the borderlands.
Having recently returned from the MPP court in Laredo, I would question the generalizations in this passage about migrants "fac[ing] sickness and squalid conditions in makeshift camps". None of the respondents I saw in court appeared to be ill (or ill at ease, for that matter), and the only respondent whom I heard express concerns about remaining in Nuevo Laredo, Mexico, had contended that cardiac surgery she had received in her home country inhibited her ability to get around, rendering her reliant for transportation on her son (who apparently lived on the U.S. side of the border). She was sent for an interview by an asylum officer that day.
As for "squalid conditions in makeshift camps", I note that the MPP guidance stated that the Mexican government would "ensure that foreigners who have received their notice to appear have all the rights and freedoms recognized in the Constitution, the international treaties to which Mexico is a party, and its Migration Law." Specifically:
They will be entitled to equal treatment with no discrimination whatsoever and due respect will be paid to their human rights. They will also have the opportunity to apply for a work permit for paid employment, which will allow them to meet their basic needs.
My colleague Todd Bensman, reporting from Piedras Negras in August, stated that he "found a dozen Hondurans congregating in the shade of a charity shelter that was too full to accommodate them, just six blocks from the Rio Grande — single men as well as two families with children." That said, nothing requires any migrants subject to MPP to remain in close proximity to the border — just that they show up at the port for their hearings. As I recently reported, I observed a removal proceeding at the MPP court involving a family of four "who were staying in Guadalupe, just outside of Monterey, Mexico, about 140 miles to the south" of Laredo, where their case was being heard.
With respect to "assault and kidnapping by cartels", on November 21, 2019, Human Rights First (HRF) issued a press release that claimed there had been "more than 400 public reports of rape, torture, kidnapping and other violence against asylum seekers and migrants whom the United States is forcing to wait in some of the most dangerous cities in the Western Hemisphere." While any assault on human dignity is abhorrent, I would note that at the time of that press release, more than 57,000 migrants had gone through the MPP program.
Further, CBP Acting Director Mark Morgan defended that initiative, and the treatment of MPP migrants in Mexico, in testimony on November 13, 2019, before the Senate Homeland Security and Governmental Affairs Committee (shortly before the issuance of the HRF press release).
Specifically, Morgan described visits by the Department of State, the International Organization for Migration ("IOM", which he identified as the "International Office of Migration"), "other advocacy groups", and NGOs to shelters across the border. He stated that two shelters visited had "persistent law-enforcement presence", were "under capacity", and "had adequate food and medical attention".
In addition, noting that IOM interviews migrants to see if they want to return to their home countries, Morgan testified that organization was told that if the migrants remained "in the shelter environment", kidnappings, sexual violence, extortion, disappearance, and murder targeting them "were not happening". He stated that dangers for exploitation arose when migrants attempted to reenter the United States illegally with the help of smugglers (Morgan asserted there was "about a nine-percent recidivism rate"), or "went out in the economy themselves".
In any event, the acting director stated that if any MPP migrant had a concern or a fear in Mexico, that migrant could present him- or herself at a port of entry, and would be "given due process".
All of that said, as I will explain below, MPP appears to be the last option that DHS is using to deter migrants from entering the United States illegally.
Before doing so, however, I will posit that the decline in the number of migrants apprehended entering the United States illegally, which had overwhelmed DHS resources along the border for much of FY 2019, itself has reduced the incentives for foreign nationals to pay smugglers to enter illegally. Simply put, the lower numbers mean that DHS can better use its limited resources to process and detain those migrants who bypass the legal immigration system, which in turn reduces the likelihood that such migrants will be able to remain and work in the United States indefinitely while their cases are pending.
To explain, I note that by the spring of 2019, there was an overwhelming surge of migrants entering illegally, and in particular, adults with children (which made up 55.6 percent of the more than 851,000 individuals apprehended by Border Patrol in FY 2019). Because DHS only has about 2,500 detention spaces for such "family units", agents had been releasing adults with children who had entered the United States illegally with nothing more than a charging document and a court date, as a bipartisan report from the Homeland Security Advisory Council's CBP Families and Children Care Panel, issued in April, revealed.
That practice, known as "catch and release", was ended in late September 2019. Without the assurance that they would be released to live and work in the United States indefinitely, many foreign nationals would have, logically, decided not to pay thousands of dollars to smugglers to make the hazardous trip to enter this country illegally. Because they never attempted illegal entry to begin with, they were never subsequently apprehended by CBP.
Other policies have also undoubtedly contributed to the decline in border apprehensions by limiting the incentives to enter illegally.
One is the transfer of families to Guatemala under the terms of the bilateral asylum cooperative agreement ("ACA", also known as a "safe third-country agreement") entered into between the government of that country and the United States, which I described in a December 12, 2019, post.
Again, the possibility of removal under the ACA has limited the impetus for third-country foreign nationals to enter the United States illegally. And, logically, if an alien can be removed via ACA, DHS will never have to return that alien to Mexico under MPP to pursue an asylum claim in the United States.
Another policy that removes the incentives to illegal entry (one that is facilitated by and complements the third-country transit bar to asylum) is Prompt Asylum Claim Review, or PACR. Under PACR, migrants from countries other than Mexico who are seeking asylum "are detained by CBP agents and quickly given 'fear of persecution' screenings while in the agency's custody." As CBS News explained in December:
The policy is a significant change from previous procedures because asylum-seekers not returned to Mexico were typically detained by Border Patrol for a few days or weeks and then transferred to Immigration and Customs Enforcement (ICE) detention centers, where they would undergo what is called "credible fear" interviews overseen by asylum officers.
Lawyers have typically been granted access to clients in ICE facilities to offer them advice before the interviews, but under the PACR program, they are not allowed to see and speak to their clients, who are detained in CBP facilities.
Not only do migrants not have access to counsel during their fear of persecution interviews, but the screenings under the experimental initiative are also more difficult to pass, the attorneys said.
This is because most non-Mexican migrants encountered by U.S. officials after July 16 are not eligible for asylum under a regulation allowed by the Supreme Court. The rule denies migrants access to the asylum system if they traveled through a third country to reach the U.S. and did not seek protection there.
Advocates have said some migrants subject to the policy were deported within two weeks of their apprehension — a departure from the typical months-long duration of an asylum case for those not placed in the program. [Emphasis added.]
A similar policy, known as the Humanitarian Asylum Review Process (HARP), applies to Mexican nationals. Of course, as noted, the third-country transit bar to asylum does not generally apply to Mexican nationals on the way to the United States, but HARP still provides a process by which DHS can quickly evaluate claims of fear, and remove migrants who do not have meritorious asylum or CAT claims.
Again, because programs like PACR and HARP make it less likely that migrants with non-meritorious claims will be able to enter and reside in the United States indefinitely by claiming "credible fear", would-be illicit migrants have likely been deterred from making the journey to begin with.
And migrants whose credible fear and reasonable fear claims are screened, and denied, under PACR would never be subject to MPP.
The last program that has likely factored into the decrease in apprehensions along the border is Electronic Nationality Verification (ENV). ENV allows DHS to quickly repatriate nationals of Guatemala, Honduras, and El Salvador who do not have claims of fear, without having to go through the often time-consuming process of obtaining travel documents from those nations' consular officials.
ENV is a particularly important tool because adults and family units from those three countries accounted for 64 percent of all Border Patrol apprehensions along the Southwest border (545,026 of 851,508 total apprehensions). It both preserves limited DHS detention resources, and reduces the likelihood that a migrant who has entered illegally from one of those three countries will have to be released into the United States due to such resource constraints (which would allow that migrant to remain indefinitely pending removal proceedings in which he or she has no relief).
To summarize: The number of migrants apprehended by CBP in January is the lowest in almost two years, and is 75 percent lower than just nine months ago. Trump administration initiatives have reduced the flow of migrants to the Southwest border and removed incentives for migrants to enter the United States illegally, in the hopes that they will be allowed to remain in this country indefinitely.
In addition to increased efforts by the Mexican government to limit the number of migrants who are able to enter the United States illegally, five specific initiatives have reduced the incentives for illegal entry: ENV, ACA, PACR, HARP, and MPP — in that order.
Aliens subject to ENV are quickly removed without undergoing the credible- and reasonable-fear review process. ACA allows the U.S. government to remove third-country nationals who are found to have such a fear to Guatemala for consideration of their asylum claims. PACR and HARP provide for a quick screening of such claims (which are limited in the case of PACR by the third-country transit bar to asylum), and the expedited removal of migrants who do not have a valid or meritorious claim. Finally, MPP allows for the return of third-country migrants who have passed credible and reasonable fear reviews to Mexico to await their removal proceedings.
The reduction in apprehension is likely a relief for previously overwhelmed DHS officers and agents, and reduces the strain on their limited resources. In four of the last five years, however, apprehensions have increased between January and February, so the numbers for this month, which will arrive in March, will provide a good indication of how effective these initiatives have been.