Mexican, Central American asylum seekers brace to wait indefinitely at the border
Nearly two years ago, Carlos Delgado and Leslie Garcia abandoned the life they had carefully built in central Mexico to seek safety for their family, away from the dangers of cartel recruitment.
They sought protection at the U.S. ports of entry in Nogales and, without being screened, were turned away under a public health order.
Like thousands of asylum seekers, they held on, living in the border city. They saw relief in sight after the Centers for Disease Control and Prevention announced the end of Title 42, the controversial rule that allowed U.S. authorities to immediately remove them.
But once again, their wait has extended indefinitely.
U.S. District Court Judge Robert Summerhays, an appointee of former President Donald Trump's, determined the Biden administration improperly terminated the public health order, saying this would require a notice and comment process. The administration has appealed.
Title 42 likely will remain in place for several months as court proceedings unfold. It could even extend until next year, the American Immigration Council predicted.
The CDC could initiate a notice-and-comment process to receive public input, responding to Summerhays' ruling. But that process is lengthy and would also drag to the end of 2022 or beyond.
The public health order, enforced since the start of the COVID-19 pandemic, has allowed Border Patrol agents to reduce processing times by avoiding regular immigration proceedings.
That means those processed under Title 42 are expelled without legal consequences for crossing the border illegally, and also that vulnerable individuals fleeing life-threatening situations cannot seek protection at the border.
The difference between what families waiting at the border experienced two months ago and what they experience today is the increased uncertainty, said Joanna Williams, executive director of Kino Border Initiative, a binational nonprofit providing humanitarian aid in Nogales, Sonora.
“It makes a difference, the fact that Title 42 is not only extended, but is extended indefinitely,” she added. "I think that changes the way that people live here, because there was a sense in the past that people were trying to plan towards a certain horizon."
On the morning of May 23 — the expected end date of Title 42 before Summerhays’ ruling — more than 200 people concentrated in a small public square facing the Dennis DeConcini Port of Entry in downtown Nogales, Sonora.
People carrying protest signs, mothers with toddlers in arms or wrapped around their backs, and staff from Kino Border Initiative, prayed, sang and shared stories of the dangers they fled back home and the suffering they endure waiting in border cities.
Delgado, who is part of a group of migrants representing those waiting at the border city, attended with his family.
"We still have hopes that, even with Title 42 in place, (U.S. officials) will process those who seek asylum," said Delgado.
Across the square, stories of extortion, threats and persecution repeated among the crowd. Most people came from the Mexican state of Guerrero, where cartel violence has ravaged towns and displaced thousands.
Delgado and Garcia, born and raised in the state of Morelos, never thought about leaving their hometown. Delgado had a stable job and the couple ran two small business with family members.
"We did well economically; we never felt the need to leave," said Garcia, a mother of three. That was until they weren't free to live safely.
Their town was taken over by organized crime and hitmen started following Delgado in the street, demanding he work as a lookout for them and threatening to hurt his family if he didn't. They eventually kidnapped him for four days, along with six other men. They released him, but threats continued. The family felt besieged, day and night, for more than a month. They left the house they owned and rented a new place. They closed their businesses.
After a year of pondering, they decided to leave for their safety and that of their children: Caleb, 9, Daney, 7, and Amaya, 2. Delgado's brother and sister-in-law, Rafael Delgado and Daisy Tejero, with two young children and facing similar threats, fled with them.
They keep together, but Delgado fears they could be followed by cartel members in other parts of Mexico.
In June 2020, they left their lifelong home — their small house by the hills and generous backyard, alive with fruit trees and vines — and set off to an uncertain future in Nogales. They now live with eight more family members, including children, crammed into a two-room apartment of bare concrete block and tin roof, on the outskirts of the border city. They don't have running water, so they buy daily from a water pipe.
Women and men shed tears at the Monday vigil and huddled in a tight circle amid religious chanting, testimonies and speeches.
"We have to start from scratch to wherever we go," a migrant woman said Monday at the protest. "We are not living, we are surviving."
Asylum rights for some
Title 42, which has been criticized for violating national and international asylum law, also has been applied unevenly.
The logic of Title 42 expulsions relies on how easy it is for the U.S. government to send people back to Mexico or their home countries, Williams of the Kino Border Initiative said.
“It doesn't matter your reasons for migration. It doesn't matter if you are a political dissident from El Salvador. That's not the factor the U.S. government is considering when they apply Title 42,” she added.
After the policy was put in place, the U.S. entered in an agreement with Mexico to send back Guatemalan, Honduran and Salvadoran migrants found at the border. Recently, Mexico agreed to receive back a limited number of Cubans and Nicaraguans. Although not in the agreement, the U.S. also has sent Haitian asylum seekers back to Mexico.
Other nationalities mostly are processed through Title 8 because of operational reasons that make fast expulsions harder.
As a result, asylum seekers from Mexico, Central America and some Caribbean countries largely have been barred from asking for protection at the border while asylum seekers and refugees from other parts of the world mostly are processed through regular immigration law, thus getting a chance to present claims.
Mexicans, Hondurans, Guatemalans and Salvadorans represent more than 90% of all Title 42 expulsions for the past two fiscal years. Yet, they represent about 70% of all national encounters last fiscal year, and less than 55% since October 2021.
Armed conflict, widespread violence, natural disasters and the long-lasting effects of the COVID-19 pandemic have set off migration worldwide. At the U.S. southern border, agents have encountered people coming from over 150 countries.
In Yuma, Arizona, about 89% of all migrants encountered came from a country other than Mexico, Guatemala, Honduras and El Salvador. Through Title 8, some are detained and deported, while others are processed and released with a GPS tracker until they await their court hearing.
About 340 people are transferred daily to the Regional Center for Border Health, a nonprofit providing health care in southwestern Arizona, after being released by federal authorities. The nonprofit tests everyone for COVID-19, isolates as appropriate and coordinates transportation to main city hubs and shelters in Tucson and Phoenix.
The odds are small even for those who, on the determination of asylum officers, have credible fear. Judges granted asylum only in 26.3% of cases between October 2019 and September 2020, and a decision can take about 2.5 years because of court backlogs.
For asylum seekers in Nogales, those odds are spread thinner.
Consistently turned away under Title 42, people from Mexico and some Central American countries are largely blocked from presenting their claims at ports of entry or between ports of entry.
In June 2021, the Biden administration opened a one-month period to receive asylum cases referred by humanitarian organizations. In Arizona, authorities at the Nogales port of entry admitted about 2,000 cases. That has been one of their only windows of opportunity over the course of the last two years.
A conflicting court ruling made by a federal judge in Washington in March could create new exemptions to Title 42.
Following a lawsuit by the American Civil Liberties Union, the U.S. Court of Appeals for the District of Columbia Circuit determined families under Title 42 could not be expelled to places where they could be persecuted or tortured.
How this decision would impact Summerhays' ruling, and how Customs and Border Protection will abide by it, is unclear. Attorneys have been able to refer cases of Title 42 exemptions, but asylum seekers arriving between ports of entry largely are pushed back across the line.
“We know that it doesn't have to be this way. We saw the U.S. government process thousands of Ukrainians in Tijuana when they wanted to, and when they had the political motivation,” Williams said.
“We know we have the capacity to welcome.”
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