NOGALES, Mexico — Along the 30-foot-high stretch of border wall that separates Nogales, Arizona, from its twin city of Nogales, Mexico, signs of attempted crossings are hard to miss.
The wall cuts through the rugged hills of the Sonoran Desert, an imposing row of rust-colored metal slats topped with a seemingly endless coil of razor wire. Every few hundred yards or so, a random article of clothing dangles from the wire like laundry left out to dry on the line and forgotten. But the tattered and bloodstained shirts, bandanas, and gloves fluttering in the breeze are garments left behind by people who became trapped on their way down.
Most don’t make it far beyond the wall. Border Patrol agents in white and green trucks are stationed around every turn; U.S. Customs and Border Protection (CBP) recorded more than 1.4 million “total encounters'' with people trying to cross the border since last July. Those who try to seek asylum—a longstanding legal right to protection for people fleeing death and persecution—are effectively blocked from entering under a policy known as Title 42.
Like the newest portion of the border wall, Title 42 is a relic of the Trump era. Invoked in March 2020 ostensibly to limit the spread of the coronavirus, the rule enables migrants to be swiftly deported or returned to Mexico. President Joe Biden has called Trump’s policies toward asylum seekers “a moral failing and a national shame” and set a self-imposed deadline of May 23 to roll back Title 42. But Republican-led states filed a lawsuit that halted the change, arguing it would trigger a wave of migration and create “an unmitigated catastrophe” at the border.
While the case plays out on appeal, potentially heading to the Supreme Court, Biden’s CBP director says the agency is “executing a comprehensive strategy to safely, orderly, and humanely manage our borders.” In practice, however, tens of thousands of desperate people are stuck in border towns like Nogales, living precariously and waiting anxiously for a shot at crossing legally when Title 42 ends.
A few steps away from the port of entry in Nogales, Chelsea Sachau, managing attorney of the Florence Immigrant Rights and Refugee Project’s Border Action Team, counsels migrants on how to navigate the system as it currently stands. She wields what she ruefully calls a “machete of reality,” often breaking the news to people that they have no shot at asylum while Title 42 remains in effect. The Biden administration has, however, started giving “humanitarian exceptions” to unaccompanied children and others deemed especially vulnerable, but in Nogales only a handful per day are being admitted, usually after monthslong waits.
“It incentivizes people to have to cross irregularly,” Sachau said of Title 42. “Many asylum-seekers have unfortunately been sort of forced to the point of having to consider making dangerous crossings across the Rio Grande or across deserts and mountains here in Arizona.”
CBP acknowledges that Title 42 has had the unintended consequence of incentivizing repeat attempts at illegal border crossings, saying it has “contributed to a higher-than-usual number of migrants making multiple border crossing attempts.”
In years past, getting caught crossing could involve a swift deportation or “expedited removal,” and criminal charges that could prevent someone from getting legal status in the future, but under Title 42 most are plopped back on the Mexican side of the border with little to discourage another go at making it over the line. Mexicans, most Central Americans, and Colombians are expelled to Mexico, while others are deported to their country of origin.
But crossing illegally is dangerous. The wall topped with razor wire is just one obstacle. Smugglers charge thousands of dollars to make the crossing, and those who try without authorization run the risk of kidnapping or worse at the hands of the cartels—often the very groups that caused people to flee their homes in the first place.
One of Sachau’s clients, an 18-year-old woman who asked to be identified as Guadalupe, was in the third trimester of her pregnancy when she arrived in Nogales after fleeing cartel violence in the Mexican state of Guerrero. After she was turned away at the border under Title 42, she spent her first night sleeping on the ground with her other young son cradled in her arms.
“It’s painful,” Guadalupe said, describing her experience in Nogales. “It’s ugly. I’m tired. Tired and fed up.”
Guadalupe has been waiting 10 months at the border, barely scraping by and living in constant fear of the people she fled from tracking her family down again. She’d never heard of Title 42 until she arrived in Nogales. She doesn’t want to cross illegally.
“It’s risky for both my children and me,” she said. “It’s risky because you don’t know what’s going to happen. We could be detained and sent back, and then we could lose our chance at requesting asylum, and that would be worse because we can’t stay in this country.”
Other migrant women shared tragically similar stories. At the Kino Border Initiative, a shelter and food kitchen in Nogales, a half dozen women—all with young children—spoke of escaping violence and threats of death, being turned away at the border under Title 42, and then being stuck in limbo in Nogales for nearly a year. They’re unable to work, unable to get their children enrolled in local schools, and ripe for exploitation by criminal groups that prey on migrants.
“Here, everything is bad,” said Mariana, another woman who fled violence in Guerrero. “They try to sell you drugs on the way to the corner.”
She too is waiting for a chance to cross legally and seek asylum, though she’s not sure how much longer she can hold out.
“My decision was to stay here, to wait and keep waiting until the government ends this, puts a stop to Title 42,” she said. “It’s affecting the children the most. They don’t have school. They’re not getting an education.”
While some of the women qualified for humanitarian exceptions, the attorney Sachau said, several don’t fit the criteria and have “no clear path forward, no clear timeline” for being able to cross legally and pursue an asylum claim.
In early May, the Department of Homeland Security said the “humanitarian exception process involves close coordination with international and non-governmental organizations in Mexico” to identify people who should qualify. A spokesperson for CBP told VICE News the exceptions are given “on a case-by-case basis to particularly vulnerable individuals of all nationalities for humanitarian reasons.”
The Kino Border Initiative tracks complaints from migrants who’ve been expelled by Border Patrol agents under Title 42, and frequent allegations include being refused medical care or having birth certificates or other important documents confiscated.
One recent complaint came from a Mexican woman who said that when she was detained by Border Patrol, the agents confiscated all of her stuff, including her cellphone, then asked her to “sign a paper saying that she would return in 30 days to collect her belongings.”
She reportedly asked, “How will I collect my belongings in 30 days? Do I have to climb over the wall again?” The agent, she said, just laughed and told her he didn’t know. The woman said she’d received death threats and feared for her life in Mexico, but was sent back regardless.
Asked about the incident and other allegations of Border Patrol misconduct, a CBP spokesperson said “items not deemed a health hazard or contraband are required to be stored and returned to migrants upon release or transfer to another agency,” and that “employees are trained in and expected to conduct themselves with integrity and respect for others.”
Even some Border Patrol agents are unhappy with Title 42, warning that mixed-messaging and lack of preparedness by the Biden administration has made their jobs more difficult.
Jon Anfinsen, president of the local chapter of the National Border Patrol Council in Del Rio, Texas, the union that represents Border Patrol agents, said his sector saw a large influx of people attempting to cross the border in late May because they heard Title 42 was ending. Little has been done, he said, to handle large numbers of asylum-seekers.
“DHS says there’s a plan but there isn’t,” Anfinsen said. “We just build more soft-sided facilities. It just increases detention capacity. Title 42 cannot be permanent, there needs to be an orderly way to process people.”
A CBP spokesperson said the administration has a plan “will increase personnel and resources as needed,” noting that more than 1,000 additional law enforcement officers have already been “redeployed” to the border.
The constantly changing and seemingly arbitrary rules about who qualifies for a “humanitarian exception,” along with the shifting deadline for ending Title 42, has led to confusion and false hope for some migrants. But many of those arriving have no idea what they are up against.
On one recent morning, VICE News observed as the attorney Sachau prepared a group of 15 asylum-seekers who’d qualified for humanitarian exceptions to present themselves at the port of entry. Half of the group were small children with parents who’d been waiting for nearly a year in Nogales. As Sachau made sure the migrants had their documents and proof of vaccination, another family wandered over and asked about getting on “the list” to cross.
“We’re here to seek asylum,” said a man with his wife and small children. “We tried to ask at the gate in the port and they said it's closed and there is none.”
Sachau patiently explained the situation, telling the man there is no “list” and he would not be able to cross immediately, directing him to the shelter nearby. They would have to wait, likely for months, and even then there would be no guarantee of crossing legally.
The group that qualified for humanitarian exceptions proceeded into the port of entry, where in a matter of minutes the CBP agents scanned their documents and took them into a secure area for further processing and vetting. With no red flags, they are released into the U.S. where they can remain while their asylum cases are adjudicated.
One woman with two young kids, a boy with his arm in a cast and a girl in sparkly tennis shoes, said she planned to reunite with an uncle in the States.
“Security for my children,” she said. “That’s all I want.”
For Sachau, it’s clear there is a way to “welcome and receive people safely and with dignity” at the border. She noted that Ukrainians who travel through Mexico to the U.S. border have been given a special exemption from Title 42 and allowed to cross, showing it’s possible for U.S. authorities to open the doors if they so desire.
“It's not calling for open borders,” Sachau said. “It's not calling for a radical re-envisioning of border processing. It's really just setting it back to what it was for decades.”
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