The capacity to quickly send non-Mexican deportees back across the border could be a breakthrough for Biden officials who say record numbers of illegal crossings have been fueled by their inability to return migrants to their home nations. Doris Meissner, the top U.S. immigration official during the Clinton administration, said she was not aware of any precedent for mass deportations of non-Mexicans to Mexico. She said the measures could be a “game changer.”
“I think we’re into a new era and new territory,” she said.
U.S. and Mexican officials said the two nations have not reached a deal on deportations. But the plan under discussion would buttress measures the Department of Homeland Security is preparing to announce as soon as next week to penalize the claims of asylum seekers who cross into the United States illegally or fail to apply for protection in nations they transit through en route to the U.S. border. The measures will create a “presumption against asylum eligibility,” the administration told the Supreme Court in a briefing this week, when illegal border crossers who face deportation claim a fear of persecution in their home nations.
Since March 2020, the U.S. government has been turning back many non-Mexicans to Mexico under the Title 42 public health law. But Biden administration officials argue that formal deportations will create the legal consequences they need to deter illegal crossings. The tougher approach will likely be opposed by immigrant advocacy organizations and some Democrats.
DHS officials declined to respond to questions about talks with Mexico. But the deportations would be carried out using the fast-track process known as “expedited removal,” according to the Federal Register Notices and officials with knowledge of the plans who spoke on the condition of anonymity because they were not authorized to discuss them publicly. The notices issued by the DHS last month make multiple references to Mexico accepting U.S. “removals,” the government’s term for deportations, when pandemic-related Title 42 border restrictions expire.
An administration official said Wednesday that removals to Mexico would be limited to Cubans, Haitians, Nicaraguans and Venezuelans, as stated in the notices, primarily when U.S. authorities are unable to send deportees to their home countries.
U.S. immigration officials have sometimes sought to send deportees to other countries when their homelands refuse to accept them, but not at the scale being considered by the Biden administration. The “Remain in Mexico” program, created by the Trump administration in 2019, required thousands of asylum seekers to wait outside U.S. territory while their claims were processed. But it did not send applicants back to Mexico as deportees.
When the coronavirus pandemic triggered a public health emergency, the Title 42 border restrictions became the U.S. government’s primary enforcement tool at the border. The Biden administration is seeking to lift those restrictions but has been blocked in federal court. The Supreme Court is scheduled to hear oral arguments in the case next month.
Biden officials say the Title 42 restrictions have incentivized illegal crossings because violators don’t face legal consequences for repeat attempts. They also argue that record numbers of migrants from Cuba, Nicaragua and Venezuela have arrived over the past two years because strained U.S. relations with those nations severely limit U.S. ability to carry out deportations.
Immigration pivot shows Biden facing hard reality of border politics
Mexico does not face the same restrictions. DHS officials said their collaboration with Mexico is consistent with the Los Angeles Declaration on Migration and Protection signed by the United States in 2022, when 21 Western Hemisphere nations pledged to expand cooperation and crack down on smuggling.
U.S. Customs and Border Protection interdicted migrants along the Mexico border nearly 2.4 million times — a record — during the government’s 2022 fiscal year. Republicans have battered Biden for the past two years over chaotic scenes at the southern border. With the White House bracing for those attacks to escalate ahead of the 2024 election, Biden officials are pivoting toward a more stringent approach that would utilize some measures long sought by border hard-liners.
Mexico is the linchpin of the plan. Authorities there have long resisted taking back U.S. deportees who are not Mexican citizens, but the government of President Andrés Manuel López Obrador has demonstrated a broad willingness to assist Washington with border control measures, accommodations that have earned him leverage over other aspects of U.S.-Mexico relations.
Mexican authorities have been adamant they will not accept the type of arrangement known as a “safe third country” agreement that would enable the United States to send all asylum seekers there. The deportation plan under discussion would be different, allowing Mexican authorities to retain control over key elements, such as the nationalities of those subjected to formal removals, according to officials with knowledge of the arrangement.
Biden officials say fast-track deportations are needed to steer migrants toward new legal pathways and away from predatory smugglers. Applicants are directed to an online app, CBP One, allowing them to schedule an asylum appointment at a U.S. port of entry or seek a two-year permit to live and work in the United States through the parole process.
Parole applicants need a U.S. sponsor, but if accepted, they can travel to the United States via air and will receive fast-track work authorization. Parole status is renewable, and migrants accepted can attempt to apply for asylum or another legal status once they arrive in the United States, DHS officials say.
“We innovate a lot in this department,” DHS Secretary Alejandro Mayorkas told reporters at a news conference this month. “This is a very novel approach to building lawful and safe pathways premised on a foundational point — which has historically been proven true — that people will wait if we deliver for them a lawful and safe pathway to come here.”
Immigrant advocates say Biden’s latest plan will deprive asylum seekers of the chance to fully plead their cases. They say many new arrivals are still recovering from a traumatic escape from their homelands, and may face imminent peril in Mexico.
Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services to immigrants, said the Biden administration is “prioritizing speed over justice and fairness.”
“If the administration moves in this direction, they’re doing so with very clear knowledge that they will be returning people to dangerous situations,” she said. “Migrants who are returned to Mexico are extremely and particularly vulnerable to rape, assault, kidnappings and other violence. This has been so well-documented. The administration knows that this is a reality.”
After the administration recorded more than 251,000 border arrests in December, the highest total ever, the United States and Mexico announced a deal on Jan. 5 allowing the DHS to return to Mexico up to 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela per month.
U.S. officials also announced they would allow 30,000 migrants per month from the four countries to reach the United States lawfully using “parole” and the online application process.
Nearly 80 Democrats in the House and Senate sent a letter to Biden on Jan. 26 criticizing his decision to expand Title 42 and urging him to discard the proposed asylum restrictions requiring migrants to seek protection in another country along their route to the United States.
“While we applaud the creation of new legal pathways for Cubans, Haitians, and Nicaraguans modeled off the existing parole programs for Venezuelans, it is disappointing that these pathways come at the expense of the legal right to seek asylum at the southern border,” the lawmakers wrote.
But Biden officials say the measures announced Jan. 5 are working. Illegal crossings by migrants from Cuba, Haiti, Nicaragua and Venezuela fell 97 percent after Mexico began taking back border-crossers from those nations, the president said Tuesday during his State of the Union address.
Migrants from those nation are technically “expelled” under the Title 42 public health law but do not face legal consequences. In contrast, under the Mexico deportation agreement being discussed, a non-Mexican migrant who crosses into the United States illegally without applying online for an appointment could be arrested, held in U.S. immigration detention, deported to Mexico, banned from the United States for five years, and threatened with felony charges and a longer jail term if they attempt a second unauthorized entry.
The Biden administration has said Mexico could back out of migration agreements if federal courts block its new measures. A group of 20 state officials led by Texas Attorney General Ken Paxton (R) filed a lawsuit Jan. 24 challenging the administration’s expanded use of parole authority. The states argue parole is supposed to be used sparingly, on a case-by-case basis, not to create a parallel visa system for hundreds of thousands of additional immigrants per year. GOP state officials called the program “lawless” and said the federal government failed to consider the financial impact the new immigrants would have on their states.
But the Biden administration said the parole expansion is pivotal to efforts to tighten border enforcement.
“Those parole processes were critical to Mexico’s decision to begin accepting the expulsion [under Title 42] or the removal [under Title 8] of noncitizens from those four countries who attempt to enter the United States at the southern border without availing themselves of the new pathways,” the Justice Department told the Supreme Court, which is weighing a related challenge by states seeking to stop Biden from lifting Title 42.
Mexican officials would not comment on their willingness to accept formal deportations, or the nature of their conversations with their U.S. counterparts on future migration agreements.
“There are ongoing conversations about the different scenarios given the changing legal, policy, and human mobility landscape,” Roberto Velasco, the Mexican Foreign Ministry’s chief officer for North America, said in a statement. “So far, there aren’t any decisions on the next steps for our migratory cooperation.”
Velasco said Mexico would prioritize “opening new safe, legal and orderly pathways for migrants, and addressing the root causes of migration.”
One of the major challenges to a deportation deal is a Mexican law that prevents non-Mexican deportees from being sent to Mexico, a reflection of long-standing apprehensions the United States could attempt to foist its immigration problems onto its southern neighbor. Mexican authorities skirted that law with Title 42 expulsions by arguing that expelled migrants have not officially left Mexican territory. But such an argument could be tougher to make with deportations.
Officials have discussed the possibility that deportations could be considered voluntary returns, if migrants are convinced that they have effectively no chance at asylum in the United States and should instead return to Mexico.
López Obrador has long pushed for the United States to create more legal pathways for temporary and migrant workers. His administration was willing to accept increased expulsions to Mexico under Title 42 only in conjunction with the growth of the parole program offering more migrants the ability to live and work temporarily in the United States.
Analysts believe a similar trade-off might be possible in the wake of Title 42, with Mexico potentially willing to accept deportations of non-Mexican migrants if more slots — and more nationalities — are added to the parole program. Those programs fulfill Mexico’s goals, and they would potentially reduce the number of migrants waiting along Mexico’s northern border and hiring smugglers.
Sieff reported from Mexico City.