Weekly U.S.-Mexico Border Update: Title 42's final days?, Darién Gap migration slows, Mexico asylum – Washington Office on Latin America (WOLA)

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.
It is now less than two weeks from December 21, when, in accordance with a November 15 court ruling, the Title 42 pandemic authority is to end. Title 42 has expelled about 2.5 million people without a chance to seek asylum since the Trump administration first implemented it in March 2020.
On December 7, the Biden administration’s Justice Department informed D.C. District Judge Emmet Sullivan of its intent to appeal Sullivan’s November 15 ruling. The administration, however, is not seeking to prolong the current Title 42 order. The Justice Department filing does not ask for Judge Sullivan’s ruling to be paused: its intent appears to be to preserve the executive branch’s future ability to employ Title 42 to expel migrants for public health reasons.
The Justice Department stated that it would seek to put this case on hold while the U.S. Fifth Circuit Court of Appeals (Louisiana and Texas) considers its appeal of another case: a Louisiana district court’s decision that had prevented the Biden administration from ending Title 42 in May 2022. The Louisiana decision had taken issue with the administration’s process for terminating Title 42, which it had planned to end on May 23. Judge Sullivan’s decision struck down the use of Title 42 entirely.
Meanwhile, 19 Republican state governments are asking Judge Sullivan to suspend his ruling. If he does not do so—as appears likely—the states could seek to have the D.C. Circuit Court of Appeals and the Supreme Court hear the case. Should those higher courts agree to do so, and should they decide to stay (suspend) Judge Sullivan’s decision while appeals proceed, then Title 42 would remain in place for some time after December 21.
While the legal maneuvering proceeds, a Biden administration official told CBS News that the Department of Homeland Security (DHS) “continues to charge full speed ahead in preparing for Title 42 to lift on December 21.”
(For more background on this confusing narrative, see the timeline of major Title 42 developments at the end of this section.)
On December 5, the Washington Post’s Greg Sargent revealed that Sen. Kyrsten Sinema (D-Arizona) and Sen. Thom Tillis (R-North Carolina) were negotiating a bipartisan bill to resolve the situation of “Dreamers”—up to 2 million undocumented people who were brought to the United States as children and know no life in any other country.
The current legislative session, which ends on December 31, could be the last chance to find a legal solution for Dreamers. The House of Representatives elected in November will have a slight Republican majority, and its leadership has indicated fierce opposition to any softening of immigration policy. The Obama administration executive order that had found a temporary solution for about 700,000 Dreamers (Deferred Action for Childhood Arrivals, DACA) was ruled illegal by a Texas judge in 2021, and the future of appeals leading to the conservative U.S. Supreme Court appears grim.
To entice Republicans to vote for a legal status for Dreamers, the Sinema-Tillis legislation, Sargent and others report, might:
Sen. Bob Menendez (D-New Jersey) has expressed “serious concerns” about the proposed bill, especially the proposal to prolong Title 42, which could cause hundreds of thousands more expulsions of migrants, many of them asylum seekers. A statement from several non-governmental groups (including WOLA) under the #WelcomeWithDignity campaign opposes “a shocking proposal to extend Title 42 for another year and additional proposals that would indefinitely curtail asylum rights.”
To move forward under Senate rules (the filibuster), this bill would require 60 senators to vote to end debate and allow a vote. Assuming that all 50 Democrats back this bill—far from certain, due to progressives’ discomfort with the Title 42 extension—Sinema and Tillis would need to convince 10 Republicans to allow it to come to a vote. That may prove very difficult, as Congress approaches the final two or three weeks of its session still needing to pass the entire 2023 federal budget and the Defense Department’s authorization.
On December 8, Sen. Tillis indicated that he and Sen. Sinema expect to finalize their bill language by Friday, December 9.
It is reasonable to expect protection-seeking migration to increase at the border after December 21, if Title 42 does truly end on that date. Data, presumably from CBP, leaked to Fox News point to 207,000 migrant encounters at the border in November, which is similar to October (it is not clear whether the number includes migrants encountered at ports of entry).
Shelters are preparing for a further increase. Sr. Norma Pimentel of Rio Grande Valley Catholic Charities told EFE that her organization’s respite center in McAllen, Texas is preparing to receive 1,000 to 2,000 migrants per day, up from a current level of about 300 per day. The Casa Alitas respite center in Tucson, Arizona, currently receiving about 350 people per day, anticipates an increase to up to 1,000 migrants per day, according to the same report. Many U.S. border-city respite centers are encouraging volunteers to sign up to help meet the likely demand for their services.
The Biden administration is preparing for a post-Title 42 future in a different way, considering other possible restrictions on the ability to seek asylum in the United States. CBS News, NBC News, Reuters, and others indicate that options under serious internal consideration include:
Two sources “familiar with internal discussions” at DHS told NBC News that “there is no ‘serious planning’ around any idea to limit asylum-seekers from coming into the U.S.”
Panama posted November data about migration through the treacherous Darién Gap jungles that straddle its border with Colombia. They show migration through the Darién plummeting 72 percent from October to November, led by a 98 percent drop in migration from Venezuela.
That fewer people risked crossing through the Darién Gap sounds like good news: hundreds each year die, are attacked, and suffer sexual violence along this 60-mile journey through ungoverned territory. The reason for the decline, though, is a sharp and sudden restriction in Venezuelan migrants’ ability to seek protection in the United States.
On October 12, the U.S. and Mexican governments announced that Venezuelan citizens encountered at the U.S.-Mexico border would be swiftly expelled back into Mexico, without affording them the chance to seek asylum, using Title 42. (As noted above, a U.S. federal judge struck down Title 42 on November 15, and the expulsions may stop by December 21.)
While Title 42’s denial of protection to Venezuelans may explain the decline in Darién Gap migration from that country, November also—for unclear reasons—saw declines in migration of citizens from Peru (-92%), Colombia (-87%), Cameroon (-44%), Afghanistan (-31%), the Dominican Republic (-30%), and Ecuador (-25%). Other countries increased, though: Nigeria (+56%), China (+38%), Haiti (+24%), India (+20), and Bangladesh (+18%).
Despite the November decline, 2022 is already the busiest year for migration in the history of the Darién Gap, which until recently was viewed as nearly impenetrable.
13,217 migrants applied for asylum in Mexico’s system in November 2022, the most in any month since November 2021, according to the Mexican government’s Refugee Aid Commission (COMAR). November’s asylum requests increased 15 percent over October, and 47 percent over September.
From October to November, COMAR received the largest increase in applications from citizens of Venezuela—27 percent—though the number of Venezuelan applicants was second to applications from citizens of Honduras. Venezuela’s requests almost certainly increased because, after the U.S. and Mexican governments began applying Title 42 and expelling Venezuelans into Mexico on October 12, Venezuelan citizens could no longer seek protection in the United States.
All nationalities that COMAR reports measured increases in asylum applications from October to November:
The latest COMAR data are a reminder that the Americas’ ongoing migration event is not just a U.S.-Mexico border phenomenon. Beyond Mexico, Colombia and other South American nations are assimilating millions of Venezuelans. Costa Rica is doing the same with citizens of Nicaragua and other countries: 4 percent of people residing in Costa Rica have pending asylum applications.
Washington Office on Latin America
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