It’s been just over a month since President Joe Biden issued an executive order that significantly narrows the ability for migrants to ask for asylum. Rather than being allowed to enter the U.S. and apply for that protection, most people taken into custody at the border now are swiftly sent back to Mexico.
The Biden administration says the order is needed because Congress has failed to provide more resources to respond to a record number of people arriving. Rights groups say it goes against U.S. law and international agreements about asylum.
Homeland Security Secretary Alejandro Mayorkas told reporters in Tucson last month that thousands have been subject to the policy so far.
“In three weeks, we have operated over 100 international repatriation flights to more than 20 countries, and removed or returned more than 24,000 individuals,” he said.
He said migrants apprehended now are given the option to return to their country voluntarily. If they refuse, they’re sent into expedited removal and could be barred from re-entering the U.S. for the next five years.
It’s a reality that’s come into sharp focus in border cities like Nogales. Sonoran aid groups estimate as many as 200 people are being returned through the crossing every day.
On a recent morning, nearly a dozen people moved around outside the turnstile of the DeConcini Port of Entry. Parents helped glassy-eyed kids re-lace their shoes and fiddled with cellphones.
Among them was Mari — a young mother from the Mexican state of Michoacan. We’re only using her first name because she’s worried about her safety in Mexico. She says she came to the border to escape violence from organized crime and ask for asylum for her and her two kids. But when she was apprehended near Nogales in June, she didn’t get a chance to ask.
“They didn’t tell us anything,” she said in Spanish. “They just took us out, and said, here you are, cross to your country.”
She says she didn’t sign the document presented to her by the Border Patrol — likely for voluntary return. And she wasn’t given any documents outlining her legal status in the U.S.
She’s not alone. Angela Barraza is a legal assistant with the border action team run by the legal aid group Florence Immigrant and Refugee Rights Project. She says none of the dozens of migrants she’s consulted in the Nogales since June have paperwork describing what happened legally. That can have big consequences for future cases.
“We don’t know if once they enter with CBP One, if they’re going to face a higher risk of detention, if they’re going to have credible issues with the judge. We just don’t know the ripple effects, it can be really devastating for people’s cases,” she said.
CBP One is the government-run app that has migrants apply for a fixed number of daily appointments to speak with border officers and ask to enter the U.S. It’s the primary way to access asylum and it’s available at a handful of ports of entry border-wide. The number of appointments allotted every day is 1,450. The average wait to get one in Nogales is more than 6 months.
Migrants who didn’t use CBP One or those taken into custody between ports of entry faced a higher threshold for getting asylum and staying in the U.S., even before the new order. But many don’t get the chance to ask for it now. Instead, they’re sent back to Mexico through a fast-tracked removal process.
Aaron Reichlin-Melnick, policy director with the American Immigration Council, says that goes against U.S. law and international agreements.
“U.S. law is crystal-clear, no matter how a person enters the country, whether illegally or legally, they have a right to apply for asylum. And the Biden administration is violating that right,” he said.
Rights groups agree and have already filed suit against the new policy. Their suit argues the policy violates a portion of U.S. immigration statute, which states anyone presently in the U.S. has the right to ask for asylum, regardless of how or where they arrived. But officials like Mayorkas insist it’s legal.
“We are executing that removal process and we will continue to do so, our agents and officers are well trained in identifying individuals who manifest fear, and they’re complying with their obligations to respect that manifestation,” he told reporters at the June press conference.
But that’s not what’s happening on the ground for migrants like Adalillia. She’s from Guerrero, in southern Mexico. And she, too, asked only her first name be used. Her two small children circled around her at a bus stop in Nogales. She was waiting for a bus to another border city, where she wanted to try and get a CBP One appointment.
She says going home to Guerrero just isn’t an option. She left with her two kids after armed groups started shooting in her neighborhood. Plus, she’s fleeing an abusive husband.
“Right now, yes, I’m afraid to go back,” she said. “Apart from that, I’m a single mom."
She’d also hoped to ask for asylum. But at the Arizona border, she says was stripped of her shoes, spare clothes, even the milk she carried for her youngest child, and turned away. She also chose not to sign the form presented by the Border Patrol. She says she was hesitant to sign something they told her was related to deportation and crossing illegally.
“I wanted to ask for asylum,” she said. “I told them I was searching for protection for the children. But they pushed me back.”
Migrants who express fear of persecution if returned to their home country are supposed to be assessed by an asylum officer and could potentially move forward with a case for protection in the U.S., according to the order. Border agents can make those determinations on a case-by-case basis.
But Barraza, the legal assistant with the Florence Project, says that’s not what she and other aid workers are seeing in Nogales.
“The part of the executive order that’s supposed to protect people that are fleeing or are afraid, we haven't really seen that in effect,” she said.
Barraza says it’s still too early to tell just how the changes will impact asylum seekers like Adalillia going forward.
This is part two of a 2-part series about asylum along the Arizona border. Read the first part from AZPM’s Danyelle Khmara.
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