Issues at the US-Mexican Border

Many Ukrainians and Russians are considering traveling to Mexico to attempt entry into the United States at the southern border. There are various risks and dangers associated with this approach.

Last Modified July 31, 2022

This information is drawn heavily from updates published by Taylor Levy, an attorney in El Paso, Texas who is one of the foremost experts on US immigration policy at the southern border. Her ongoing updates can be found here.

The danger of Crime and Kidnapping

First, Mexico can be extremely dangerous for migrants, especially those who are easily identifiable by race and language.  It can be very dangerous to travel from Mexico City to the border if you are not under the protection of smugglers. For example, while anyone can buy a bus or plane ticket to the border, cartels systematically monitor border bus stations and airports for arriving migrants—these locations are hotspots for kidnappings, especially in Nuevo Laredo.  Some of the kidnappings are perpetrated by taxi drivers and Uber drivers. The kidnappings are for the purpose of extorting family members for ransom payments, and migrants perceived as having wealthy relatives are at an increased risk of kidnapping. 

What is Title 42?

Second, the ports of entry (POEs) are still officially closed for all nationalities under Title 42, a law that permits the U.S. government to expel people who have recently been in a country where a communicable disease was present. The law is found at 42 U.S.C. §265. The Trump administration implemented the use of this law during the Covid-19 pandemic and the Biden administration has continued it. It prevents asylum seekers at U.S. borders from asking for asylum at POEs.  

Ukrainians No Longer Get Exceptions to Title 42

On April 1, 2022, the Centers for Disease Control announced that Title 42 would be terminated as of May 23, 2022. However, a federal judge blocked the lifting of Title 42 and for now, it is still in effect.  Furthermore, although Ukrainians were largely granted exceptions to Title 42 and allowed entry following issuance of a Department of Homeland Security memo on March 11, 2022 stating that Ukrainians “may be considered” for an exception from Title 42, starting April 25, Ukrainians are no longer being granted exceptions.  Instead, Ukrainians are referred to apply to Uniting for Ukraine, the humanitarian parole program announced on April 21.  Ukrainians are forced to remain in Mexico and attempt to find a sponsor so that they can avail themselves of Uniting for Ukraine. 

Attorneys, advocates, and journalists at the southern border report that other nationalities, including Russians, are also being turned away under Title 42 with very few exceptions granted.  

When migrants are turned away from the U.S. POE under Title 42, they are frequently turned over to Mexican immigration authorities, who may deport them or encourage them to apply for asylum in Mexico. If a migrant files an asylum application in Mexico but later makes it to the United States, it may negatively affect the migrant’s ability to apply for asylum in the United States. Furthermore, Mexican immigration authorities sometimes ask for bribes to release migrants, or turn migrants over to the cartels.

Even People Granted an Exception to Title 42 May Be Put in Removal Proceedings

Prior to the announcement of the Uniting for Ukraine program, the request for an exception from Title 42 was generally made as a request for humanitarian parole. Parole allows an individual who is not eligible for admission into the United States to be in the United States for a temporary period for “urgent humanitarian reasons” or “significant public benefit.”  Migrants who were granted exceptions from Title 42 were generally given a grant of parole valid for one year or just under one year.  However, some people were granted an exemption but were not granted parole, and have been allowed to enter the United States only to be given a “Notice to Appear” and placed in immigration detention. A Notice to Appear is the charging document that initiates removal proceedings against a non-citizen and states when the noncitizen must appear in immigration court.

Even people who request and are granted humanitarian parole at the POEs are often held for several days before release, especially single adults. This is not officially Immigration and Customs Enforcement (ICE) “detention,” but rather is considered Customs and Border Protection “processing.”  It may feel like detention, but the distinction is important, especially if an attorney is calling CBP attempting to locate or assist a migrant. Some people who enter on humanitarian parole are nevertheless also later issued Notices to Appear and placed in removal proceedings. Anyone who enters through the southern border should take note of their A number (a nine-digit number issued by U.S. immigration authorities) and regularly check the Executive Office of Immigration Review case status website to make sure they know about any scheduled hearings in immigration court.  https://acis.eoir.justice.gov/en/ 

Some immigrants have attempted to avoid the ports of entry and enter the U.S. without inspection (i.e., cross the border illegally)  and then surrender to CBP officers once in the U.S. If apprehended by CBP, migrants are generally sent to ICE detention, especially in Louisiana. Migrants who have been detained by ICE are placed in removal proceedings. If you believe a loved one may have been detained by ICE, you can check the ICE detainee locator, https://locator.ice.gov/odls/.  People held for CBP “processing” will not show up in this locator tool. 

Lifting Title 42 Will Not End Problems at the Border

Even if Title 42 is lifted and all migrants are permitted to seek asylum at the U.S.-Mexico border, the dangers of kidnapping and cartel violence will remain, and there will almost certainly be delays and backlogs in the number of people that CBP will process through POEs each day. Thousands of people who were denied an opportunity to seek asylum for the last two years because of Title 42 are likely to come to the border again. It is unclear if CBP will refer all Ukrainians to the Uniting for Ukraine program or if it will permit some Ukrainians to request asylum at the border. 

Further, even when migrants are permitted to request asylum at the border, they are unlikely to simply be allowed to enter the United States to apply for asylum.  Instead, if they express a fear of return to their country, they will likely be allowed into the United States but placed in immigration detention. 

Finally, Ukrainians may face challenges to winning an asylum claim in the United States.  More information about asylum eligibility can be found here

What About Minors Attempting to Cross the Border?

If anyone under the age of 18 tries to cross the border without their biological parent (whose name is on their birth certificate), they have a very high chance of being separated from whoever they are with. This includes children under the age of 18 who are accompanied by their siblings, their grandparents, their cousins, etc., even if the non-parent relatives have a power of attorney. The Department of Homeland Security (DHS)  interprets the Trafficking Victims Protection and Reauthorization Act to require legal guardianship in the form of a judicial custody order. Even then, if the judicial court order is in a language other than English, they often err on the side of refusing to accept it and default to separation.

The child will be considered an “unaccompanied minor” and transferred from DHS custody to Office of Refugee Resettlement (ORR) custody. This is supposed to happen in 72 hours. Once in ORR custody, the child may be moved throughout the United States to a facility that has bed space. For children over the age of 12 this usually (not always) means group homes. For children under the age of 12 this usually (not always) means foster families at night and a group home setting during the day. ORR attempts to keep minor siblings together.

Once an unaccompanied minor is taken into custody, the closest relative (preferably the parent) should contact ORR at 1-800-203-7001 or via email at information@ORRNCC.com. The ORR hotline will not give out information about the child beyond that they are or are not in the custody of ORR. If they are in the custody of ORR, they will send the caller’s contact information to the facility where the child is being held. Social workers will then reach out to the family to begin the reunification process. This process usually takes about two weeks to be reunited with parents and longer to be reunited with non-parents.

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