Border agents ignoring fear claims, migrants say, in violation of Biden order exception

NOGALES, Sonora — The exhausted couple sat on the ground outside the Mexican immigration office in the DeConcini port of entry on Friday morning, methodically re-lacing their shoes that officials had inspected, as their two daughters, ages 5 and 10, sat quietly beside them.

Gathering their belongings into small plastic bags provided by the immigration agency, the foursome walked out onto a bustling side street to join dozens of other recently returned migrants, mostly Mexican families with children.

Unrelated families consulted with one another, trying to figure out next steps after being returned to Mexico under President Joe Biden’s June 5 executive order, which dramatically restricts access to asylum for migrants who enter the U.S. outside an official port of entry during busy times at the border.

Some of the newly deported migrants said they told Border Patrol agents they feared return to their home country — which is supposed to prompt a credible-fear interview, even under the new rule — but they were ignored and deported anyway.

“Are we in Nogales?” one woman from southern Mexico asked in Spanish. A mother from Chiapas with three children, ages 2, 7 and 12, asked how to find a safe taxi to the nearest airport. Her eyes brimming with tears, she described the dangers they’d fled and that they now must return to in San Cristóbal: the homes in her neighborhood burnt down by criminals with impunity, the bullet that whizzed by her eldest daughter’s ear a few weeks ago.

Like the others, the family with two daughters, who asked to remain anonymous, were deported to Sonora through an expedited-removal process on Friday morning. They’d crossed into Arizona two days earlier, through the desert near Lukeville.

Fleeing violence in Mexico City, they said they intended to request asylum once they found a Border Patrol agent. But before they could ask, the agent told them that wasn’t an option anymore, under the new asylum policy.

“They just told me we were going to be deported,” the father said in Spanish. “They said the government changed the rules. They never let me talk so I could ask for asylum.”

None of the five families who spoke with the Arizona Daily Star on Friday were aware of the new asylum restrictions until they crossed the border and surrendered to border agents. They now face a five-year ban on re-entry and possible criminal charges if they try again.

Agents violating protections, advocates say

The Border Patrol has estimated it’s returning 500 Mexican nationals daily to Nogales, Sonora, though it’s difficult to track: Only about 200 per day appear to be going through official repatriation processing at Mexico’s repatriation office in the DeConcini port, said Pedro De Velasco, director of education and advocacy for binational migrant-aid nonprofit Kino Border Initiative, which has a shelter in Nogales, Sonora. Some are being deported at night, when the office is closed, he said.

About 300 more migrants per day are being returned to smaller border cities in Sonora: Naco, Sonoyta and Agua Prieta, aid workers say.

While some families said they didn’t get the opportunity to request asylum, others told the Star they did express their fear and asylum request to border agents. That’s supposed to trigger a credible-fear screening, albeit at a higher standard than before Biden’s order took effect. Those who pass the screening could access lesser forms of protection, including the U.N. Convention Against Torture, which prohibits returning people to a country where they’ll likely face torture.

But border agents ignored their fear claims, or chastised them for asking, the asylum seekers said.

“He said even if I spoke to someone (to request asylum) it would only elongate the process, because I wasn’t going to get asylum anyway,” said a Mexican woman who asked to be identified only by her first name, Ángeles. She displayed photos of herself, which she said she also showed to a border agent, with two black eyes after she was beaten by a man in her neighborhood in Guanajuato, in central Mexico.

Before the executive order, border agents or immigration officials were supposed to directly ask migrants surrendering to agents if they feared persecution in their home country before putting them into removal proceedings.

Now the onus is on asylum seekers — who often arrive traumatized, hungry or ill, advocates say — to speak up to border agents. If they don’t, they can be deported immediately.

But even those who do speak up are being widely ignored, De Velasco said. Soon after Biden’s order took effect, De Velasco said he approached a large group of returned migrants near the DeConcini port and asked if any of them had claimed fear to border agents after crossing into the U.S.

“Everybody raised their hand,” he said. “They said (border agents) told them there was no asylum, that asylum had ended on Tuesday, or that it wasn’t their problem.”

Others said an agent told them, “You should bring your problems up to your government, not mine,” De Velasco said. “That’s in clear contravention of what the provisions of the executive order actually say.”

U.S. Customs and Border Protection did not immediately respond to the Star’s Thursday request to interview the Border Patrol’s Tucson sector chief John Modlin about how agents are implementing the executive order in the field. CBP also did not respond to questions the Star submitted in writing about how agents have been trained on the order’s provisions.

“The actual protections built into the order are minimal and inadequate, but even those are being missed,” said Joanna Williams, executive director of Kino Border Initiative. “I can’t say I’m surprised. If the intention and the messaging around this order is, ‘This is an order to close off access to asylum and close off the border,’ then that’s the message Border Patrol agents have received and internalized.”

Under pressure to act on immigration, Biden signed an executive order this month limiting asylum processing once migrant apprehensions between ports of entry reach a seven-day average of 2,500 per day. The limits went effect immediately because average arrests were already at 4,000 daily, and will remain in effect until that average drops to or below 1,500, which last happened in 2020, during the pandemic, the Associated Press reported.

White House spokesperson Angelo Fernández Hernández told the AP that the executive order was needed since congressional Republicans blocked a bipartisan agreement that “would have provided critical resources, statutory changes, and additional personnel to the border.”

So far, Mexican nationals are feeling the brunt of the new policy’s impact since it’s easier to return them to their country of origin by land, and the U.S. doesn’t have the money, flight capacity or authority to deport everyone subject to the executive order, the AP reported.

Even before the June executive order, migrant-aid workers in Sonora often heard reports of agents ignoring Mexican asylum seekers’ fear claims and coercing them into signing “voluntary removal” forms, Williams said.

“Initially we weren’t sure how much of a difference it (the order) would make for Mexican families because we had already seen that troubling trend,” she said. “But turns out we’re seeing even more families being returned, even some who had fled violence and just were never asked about their fear, and others who proactively expressed it and were told it isn’t an option anymore.”

Despite the executive order, it is still legal under domestic law to request asylum on U.S. soil, regardless of how one entered the country. The American Civil Liberties Union and a coalition of advocacy groups filed a lawsuit Wednesday challenging the legality of the executive order.

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“The practical impact will be the return of many victims of torture and persecution to dangerous conditions,” the complaint said.

In response to the lawsuit, a U.S. Department of Homeland Security statement said, “The Securing the Border rule is lawful, is critical to strengthening border security, and is already having an impact. The challenged actions remain in effect, and we will continue to implement them,” the AP reported.

Migrant arrivals ongoing at border

So far migrants arrivals at the Arizona-Sonora border don’t seem to have slowed much since the order took effect, Arizona humanitarian-aid volunteers say.

Agents in the Tucson sector are still struggling to pick up large numbers of asylum seekers arriving daily where the border wall ends at a place 20 miles east of Sásabe that’s accessible only over rugged, hilly roads, said Laurel Grindy of the Green Valley-Sahuarita Samaritans, which has a regular humanitarian presence there.

Even eight months after migrant arrivals in this remote area began surging, border agents still don’t have enough transport vehicles that can manage the hills, she said.

A collision between two Border Patrol pick-up trucks on Monday highlighted the danger in transporting migrants in open truck beds, which has been happening, aid workers say.

Border agents are “under-supported” when it comes to the care and transport of asylum seekers who surrender to agents, Grindy said.

“You can see it on their faces, the frustration,” she said. CBP is “not putting money where they need to. There’s welding and re-welding of the wall (after smugglers cut holes in it), and construction on the border road. We’re just pouring money into that black hole of a wall.”

Supporters say it will take time for the executive order to have an impact on migrant arrival numbers, as would-be asylum seekers learn about the penalties for crossing outside an official port of entry.

Under the Biden administration’s year-old Circumvention of Lawful Pathways rule, the only legitimate way for most migrants to request asylum in the U.S. is by making an appointment to enter the U.S. using the “CBP One” smartphone application. Those who use the app, which only works in north or central Mexico, are exempt from the new, tougher standard to access protection.

But the app only offers 1,450 appointments each day border-wide — and just 100 at the DeConcini port of entry — which is nowhere close to meeting demand, advocates say, resulting in wait times of up to eight months for asylum seekers waiting in dangerous conditions.

Even as the Biden administration restricts other paths to asylum, the number of CBP One appointments hasn’t increased, Williams said.

“The capacity of CBP One remains the same and there’s no indication they’re increasing that capacity,” she said.

Kino has been receiving deported asylum seekers in extremely vulnerable situations, who say going home is simply not an option due to the danger.

“There’s a lot of discouragement, and a lot of perseverance with people saying, ‘I’ve gotta get my kid to some safety. I’m going to find some way to do that,’” Williams said.

Order could have deadly impacts

Restrictions on access to asylum outside official ports of entry — and the steep barriers to using CBP One — will ultimately lead desperate migrants to enter the U.S. through more remote parts of the desert to avoid detection, raising the risk of deaths, advocates say.

It’s a realistic concern, especially as the region has recorded brutally high temperatures over the past week, said Karla Betancourt, who runs a migrant-aid shelter in Sonoyta, Sonora, just south of Lukeville, Arizona. Temperatures hit well over 110 degrees there this week, she said.

“Many of the deported people arrive with heat stroke and have to receive medical attention,” she said in Spanish.

The center has been receiving between 90 to 150 returned migrants daily since Biden’s order took effect, and none of them reported receiving a credible-fear interview, even if they asked to request asylum, she said.

“They’re being denied,” she said. “They only tell them they have to leave.”

Aid workers say it’s not yet clear which other nationalities Mexico is accepting, other than Mexican nationals. Mexico had previously agreed to accept up to 30,000 people per month from Cuba, Haiti, Nicaragua and Venezuela, countries that aren’t willing or able to receive deportations, the AP reported.

Some worry non-Mexicans could be returned to Mexico covertly, in remote areas without the support infrastructure that exists in Nogales, and without the expressed permission of Mexico.

De Velasco cited a situation four years ago, when the pandemic-era Title 42 policy was in effect, when a Guatemalan national was run over by a Border Patrol four-wheeler and treated briefly for a fractured leg. Mexico initially refused to accept the man back into the country, so Border Patrol returned him during the middle of the night, he said.

“Our concern right now is that even if the Mexican authorities try to prevent the U.S. authorities from expelling people that are non-Mexican nationals to Mexico, what is keeping the U.S. from cheating and going through these remote areas?” he said. “There’s no Human Repatriation Office there (as there is in Nogales), so who is there to check who you’re sending?”