El Paso Border Patrol prepares for end of Title 42 migrant expulsions

Editor's note: This story comes from the El Paso Times as part of the Puente News Collaborative, a group of newsrooms -- including ABC-7, which explores issues with a bi-national perspective. Story by Lauren Villagran.

U.S. agencies involved in border security, immigration, and refugee care are facing serious staffing shortages that could complicate the policy shift. Border Patrol El Paso Sector Chief Gloria Chavez told the El Paso Times and the Puente News Collaborative. Border Patrol in El Paso has seen its ranks decline to about 2,100 agents from 2,400 two years ago.

Border Patrol's ability to handle a projected increase in migration depends, in part, on how effectively Border Patrol and partner agencies can process, transport, detain, remove or release people, Chavez said.

El Paso Sector's Central Processing Center off Hondo Pass in Northeast was holding more than 3,000 migrants on Monday, or nearly twice the center's capacity, including a temporary annex.

Chavez is focused on logistics: communications, transportation and coordination between federal agencies and area nonprofits.

"I feel that our agents — as long as we give them the resources and the tools to do the job and balance it out with a consequence delivery that shows their efforts are not being undervalued — we are going to come up on top," she said.

The Centers for Disease Control issued the Title 42 public health directive in March 2020. The order required border agents to rapidly return most migrants to Mexico or their country of origin to avoid placing them in holding stations or processing centers to prevent the spread of COVID-19.

Immigrant advocates fought the order, saying the quick expulsions often undermined legal avenues to seek asylum in the U.S.

When Title 42 ends on May 23, Border Patrol will return to processing migrants under Title 8 of the U.S. code, which governs immigration. Under Title 8, some migrants may be eligible to legally seek asylum or other immigration relief, while others could be criminally prosecuted for entering the country illegally.

"Title 8 authority and processing is going to get us right back on track," Chavez said. "It's going to take us a little bit to ramp up. But we're gonna get there."

El Paso Sector's preparations to return to Title 8 processing include:

• Vaccinating migrants against COVID-19 in a voluntary program that began March 28
• Building a soft-sided annex to the Central Processing Center, increasing official capacity of 1,040 to 1,740
• Hosting one U.S. Citizenship and Immigration Services asylum officer at the Central Processing Center to help coordinate calls between asylum seekers and asylum officers
• Piloting a joint "case acceptance system" with U.S. Immigration and Customs Enforcement to streamline transportation of migrants to local shelters or detention
• Detailing Border Patrol agents to U.S. attorneys offices to facilitate criminal prosecutions

The COVID-19 pandemic and Title 42 all but suspended the United States' immigration system. It sharply reduced access to legal paths to asylum and curbed what Border Patrol used to refer to as "consequence delivery," the prosecution of individuals on misdemeanor unlawful entry and felony re-entry charges.

In the absence of action by Congress, it is up to the Biden administration to determine what immigration and border enforcement will look like in a post-pandemic, post-Title 42 era. 

The Biden administration hasn't indicated how aggressive it will be in prosecuting those who cross the border illegally or deporting those whose asylum claims have been rejected, even as it works to restore humanitarian protections lost under Title 42. 

'Array of options' to manage border

Title 8 gives Border Patrol "an amazing array of options" to manage the border, said Peter Hermansen, a retired Border Patrol director of special operations. But he said he worries the Biden administration won't support enforcement and Chavez, like the other eight Southwest border sector chiefs, is "going to have a massive morale problem on her hands."

"What consequences are we going to deliver? Who are we going to deliver them against? And who is going to support us in delivering those consequences?" Hermansen asked. "I don’t think it’s going to be there because there is a lack of support already."

Overall federal prosecutions of all offenses were down 38% in January compared to the same month five years ago and down 9% from a year ago, according to Syracuse University's Transactional Record Access Clearinghouse, or TRAC, which analyzes immigration data.

"Unlawful entry prosecutions — which make up the vast majority of federal court cases in general — those charges completely bottomed out and haven’t recovered," said Austin Kocher, assistant professor at Syracuse University.

There were 24 unlawful entry prosecutions in September 2021, compared to more than 8,000 in September 2018, according to TRAC. Unlawful re-entry prosecutions topped 1,000 in September 2021, less than a third of monthly totals before the pandemic.

"It’s 100% Title 42," he said. "Everyone who would have been prosecuted is getting just turned away. I would fully expect those federal prosecution numbers to shoot way back up."

A 'sensible asylum system'

Immigrant advocates, who called for the end of Title 42, have shifted their focus to championing the humane treatment of asylum seekers in the temporary custody of U.S. Customs and Border Protection and their quick release.

"Really the most important piece is the restoration of the right to seek asylum and a transparent process for those seeking asylum," said Marisa Limón Garza, deputy director of the Hope Border Institute in El Paso, who has shared her concerns with Chavez and other local authorities.

In March, the Biden administration reworked how migrants will legally apply for asylum at the Southwest border. U.S. Citizenship and Immigration Services asylum officers will decide cases, rather than immigration judges. 

When a person crosses the border and claims a fear of persecution or torture — and passes a formal "credible fear" screening by Border Patrol — they will be referred to an asylum officer and released. Rather than wait years to see an immigration judge in the overburdened immigration court system, asylum seekers will have their cases decided within months, according to Homeland Security.

The immigration court backlog stood at nearly 1.5 million cases in January 2022, including more than 238,000 cases that originated with a "credible fear" claim, according to the Executive Office of Immigration Review, which manages the immigration court system.

Asylum requests began rising markedly in 2017 and ballooned each year until the pandemic hit, according to data compiled by TRAC at Syracuse University.

Many applicants don't ultimately qualify for asylum under U.S. law, which requires proving persecution on the grounds of race, religion, nationality, membership in a particular social group or political opinion. Asylum has been one of the few legal paths into the country, in the absence of an increase in work and other visas.

In 2019, immigration judges granted asylum in 30% of cases, or 20,126 of 67,958 cases decided that year, according to TRAC. Asylum law is complex, and an applicant's chances increase substantially with an attorney.

The Biden administration acknowledged that USCIS doesn't have the staffing to meet the expected need, up to 75,000 cases annually. The agency has estimated that it will need to hire some 800 new employees and spend approximately $180 million to fully implement the new asylum process.

That is unlikely to happen by May 23.

“Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed," Homeland Security Sec. Alejandro Mayorkas said in a statement.

Border Patrol is tasked with the front end of the process: receiving asylum seekers, transporting them to the Central Processing Center and logging their information before releasing them to ICE or a nonprofit shelter such as El Paso's Annunciation House.

"We’ve encouraged them to think specifically about the care of people in the Central Processing Center," Limón Garza said. "They have been responsive to that. They are working to respond to changing policy. We need to think critically about resources." 

Rising migrant encounters

Chavez — a 27-year veteran of the Border Patrol with responsibility for more than 2,100 agents and 268 miles of U.S.-Mexico border — declined to provide an estimate for what migration flows could look like in the region when Title 42 ends. But she said migrant encounters in El Paso Sector have risen to roughly 900 per day in April, from around 600 per day in March and 300 per day in January.

"The numbers don’t lie," said U.S. Rep. Tony Gonzales (R-San Antonio), whose district stretches from El Paso to Del Rio, Texas. "When you look at the numbers, it’s astronomical. All these sectors have a similar story and the resources don’t match with the throughput. That’s where you see a lot of agencies feeling overwhelmed."

A leaked Homeland Security planning document published by Breitbart News, details of which were also provided to Axios reporters in March, describe contingency planning for a "major influx," defined in the document as more than 5,000 people arriving in one day in any one of the nine Southwest Border Patrol sectors.

Based on past trends, the mix of people arriving could shift dramatically, potentially from single adults trying to evade border agents to families seeking asylum. So, too, could Border Patrol's resource needs — including the number of agents, civilian processing coordinators, temporary holding facilities and transportation options.

U.S. Customs and Border Protection reported more than 1 million encounters at the Southwest border from October through March, up 85% from more than 570,000 encounters over the same period a year ago. In El Paso, encounters climbed by 58% to 113,281 in the six-month period, from 71,810 during the same period a year ago.

"The situation is unsustainable and the challenges are getting worse," said U.S. Rep. Veronica Escobar, D-El Paso.

"Congress needs to take some action," she said. "As we shrink legal pathways, we shouldn’t be surprised that we see an increase in irregular migration. Congress hasn’t taken action to expand visas; we have limited asylum; we haven’t supported in-country (visa) processing. We have got to restore those legal pathways that have been taken away or blocked."

The quick returns under Title 42 encouraged some migrants — mostly single adults — to cross and attempt to evade border agents again and again. There was no consequence for doing so, unlike in the pre-pandemic era when crossing illegally often resulted in criminal prosecution and jail time.

Recidivism, defined as the percentage of individuals apprehended more than one time by the Border Patrol within a fiscal year, climbed to 27% in fiscal 2022 from 7% in fiscal 2019, the last full year before Title 42, according to Border Patrol.

But before Title 42, the majority of those arriving at the Southwest border were parents traveling with children who actively sought out border agents to give themselves up, many with hopes of seeking asylum.

In March, El Paso Sector was the fifth-busiest after the Rio Grande Valley, Del Rio, Yuma and Tucson sectors.

Communications and coordinators

With the end of Title 42 near, Chavez is focused on preventing the kind of bottlenecks that could leave Border Patrol's limited holding centers overcrowded and overwhelmed. 

The El Paso Sector piloted a system last year that automates communications with ICE, which typically transports migrants from Border Patrol custody to nonprofit shelters, to detention or to be returned to their home country.

Before, Border Patrol agents would pick up a phone and call ICE after processing a group of migrants; some of those requests would get lost and migrants could languish for longer periods in Border Patrol custody. Now, Chavez said, Border Patrol agents in El Paso digitally log requests into a "case acceptance system" and ICE immediately schedules a pickup.

Sometimes, when requests would get lost in the shuffle, "hours would turn into days," Chavez said, "and then that the point the finger-pointing would start."

"Everything is electronic now," she said.

The Sector also has 95 new processing coordinators at the Central Processing Center, a job created in 2021 for civilians. Their responsibilities include receiving asylum seekers, handling their paperwork and seeing to their welfare while in CBP custody. Thirteen more coordinators assigned to El Paso are at a seven-week academy, Chavez said.

To get ahead of what she expects will be a bottleneck in transportation, she said Border Patrol agents in El Paso are taking advantage of a program to earn a commercial driver's license. By the end of May, Chavez expects 51 agents in the sector to be CDL certified.

"We need more transport," she said. "We need more able drivers and vehicles to transport people from the border to the CPC, and from the CPC to whatever disposition it might be."

As for the single USCIS asylum officer assigned to the Central Processing Center, Chavez said she wishes she could host 25. 

"At least I now have one person assisting me," she said. "This is one of the requests that we have made as a sector along with other chiefs on the southern border. We've learned that on the front end to have to have asylum officers embedded is a huge help for us. So let's continue to build upon that."

Lauren Villagran can be reached at lvillagran@elpasotimes.com.

This story was produced as part of the Puente News Collaborative, a binational partnership of news organizations in El Paso and Ciudad Juárez.