A Line that Barely Budges
This report documents impediments facing people attempting to seek asylum at the U.S. port of entry in Nogales, Arizona following the end of the Title 42 policy on May 11, 2023. While the Biden administration finally ended its use of that illegal policy, the administration has implemented other steps to deny or delay access to asylum at the southwest border, including limits that force asylum seekers to wait for weeks or months for processing at ports of entry and a new asylum ban that went into effect on May 11, 2023. The new rule unlawfully renders ineligible for asylum most refugees who cross the border outside of ports of entry as well as those who seek asylum at a port of entry without one of the highly limited CBP One appointments. The asylum ban violates U.S. law and core principles of international refugee law binding on the United States, as Members of Congress, UNHCR, former immigration judges, the asylum officer’s union and many others have confirmed. The asylum ban will return refugees to persecution, torture, and death in their home countries and other countries where their lives are at risk.
U.S. immigration law makes clear that people in search of refuge can seek asylum at U.S. ports of entry and/or after entering the United States through other means. The right to seek asylum is protected regardless of whether someone entered at a designated port of entry. U.S. immigration and refugee law can no longer be evaded through use of the specious Title 42 “public health” policy. The right to seek asylum is a fundamental human right enshrined in the Universal Declaration of Human Rights, and treaties binding on the United States as well as customary international law prohibit the return of refugees to places where they risk persecution.
Yet, in Heroica Nogales, Sonora, Mexico, (“Nogales, Mexico”) people waiting to seek asylum at the Dennis DeConcini Port of Entry face a barrage of logistical and legal barriers, despite the clear provisions of U.S. and international law forbidding such restrictions. These include:
- Life-threatening dangers while left waiting and struggling to get CBP One appointments: People waiting in Nogales, Mexico to seek asylum in the United States – including survivors of rape, kidnapping, and persecution – face kidnappings, assaults, robberies and other immediate dangers while displaced waiting in Nogales, Mexico as they struggle to secure one of the highly limited number of appointments released through the CBP One app, which operates essentially like a lottery. While waiting to secure an appointment, an LGBTQI+ asylum seeker was nearly kidnapped in Sonora, and two Haitian couples and a baby escaped a potential kidnapping near the port of entry in late May.
- Lack of knowledge of Biden administration asylum ban and impossible choices imposed by the ban: During May and early June, monitors from the Kino Border Initiative, The Florence Immigrant & Refugee Rights Project (“The Florence Project”), and Human Rights First spoke with hundreds of asylum seekers waiting in Nogales, Mexico who did not know about the asylum ban and the penalties it inflicts. Upon learning of the new asylum ban, people seeking asylum confront an impossible choice: either seek safety at the port of entry without an appointment, a step that – for non-Mexican asylum seekers – could bar them from asylum under the ban and return them to life-threatening harm, or wait indefinitely in situations of displacement and life-threatening danger until they secure an appointment through the CBP One system which functions essentially like a lottery.
- Mexican asylum seekers forced to wait in danger in country of persecution: Even though people seeking asylum from Mexico are not subject to the asylum ban for entering without a CBP One appointment and no one seeking asylum can be turned away from a port of entry under U.S. law, U.S. officials routinely leave Mexican asylum seekers to wait in line for weeks at risk in their country of feared persecution as the Biden administration and CBP limit access to asylum at ports of entry and deprioritize the processing of the asylum requests of people without appointments.
- People suffering emergencies or urgent threats left at risk: People facing an urgent medical or protection situation including threats to their life or safety such as risk of sexual assault and kidnapping, torture or murder, have been left by U.S. officials to wait in Nogales, Mexico for over two weeks due to minimal processing of asylum seekers without CBP One appointments. The Department of Homeland Security (DHS) and Customs and Border Protection (CBP) are deprioritizing cases without appointments and lack government-led procedures for the timely identification and processing of urgent medical and protection cases. At present, access to seek asylum at the port for those without appointments functions with minimal daily processing of those in this line. and those who may be facing urgent circumstances are often out of eyesight of CBP officers or are prevented from being able to directly walk up to the CBP officers due to metering mechanisms run by Mexican authorities. Beyond relying on local NGOs with limited resources to identify such circumstances and tirelessly advocate on the vulnerable person’s behalf, DHS and CBP have not implemented any public-facing or government-led procedures to ensure that individuals with urgent medical and protection cases – even those that may fall within the asylum ban’s “compelling circumstances” unduly narrow exceptions – are identified by local CBP officers and processed quickly given the life-threatening risks they face.
- A line that barely budges: Hundreds of individuals and families waiting to seek asylum at the U.S. port of entry in Nogales, many of whom are Mexican, have been left by CBP to wait in line for, on average, more than 15 nights since about May 15, 2023. CBP officers appear to have processed only a small fraction of people seeking asylum who do not have CBP One appointments, which monitors estimate to be an average of 10 to 15 individuals per night. Restrictions on processing at the Nogales and other ports of entry – through the CBP One app and the minimal processing of people without appointments – violate U.S. refugee law and amount to unlawful metering.
- Families continue to be separated under the Biden administration, including women who were separated from their husbands, partners, siblings, and other family members and then transported 1,200 miles by U.S. Border Patrol before being expelled alone to Nogales, Mexico during the last days of Title 42.
The Nogales DeConcini Port of Entry is the only port of entry which accepts CBP One appointments for the entire Arizona/Sonora border. Therefore, any asylum seeker for hundreds of miles in either direction must travel to Nogales, Mexico should they secure an appointment using the CBP One app. The other smaller ports of entry along the Arizona/Sonora border are Class B or C ports, meaning they do not operate 24 hours per day, seven days per week (as the Nogales DeConcini port of entry does), and they lack significant resources to process more than a handful of asylum seekers per day. Moreover, the other smaller ports tend to be in remote parts of the Arizona desert, where the Sonoran towns directly across from the U.S. ports have high levels of organized crime; in fact, there have previously been incidents of active warfare between different cells of organized crime along certain Sonoran highways leading from the remote towns to Nogales, Mexico. Simply put, the Nogales Port of Entry is the only option for many vulnerable asylum seekers for hundreds of miles. And yet, even Nogales, Mexico is not a safe place to wait to secure a CBP One appointment or wait outside the port of entry.
The research in this report stems from the work of the Kino Border Initiative, The Florence Immigrant & Refugee Rights Project, and Human Rights First. The Kino Border Initiative (KBI) is a binational, Catholic organization, locally rooted in Ambos Nogales on the Mexico–U.S. border. Its mission is to promote humane, just, and workable migration through: direct humanitarian assistance and holistic accompaniment of migrants, education and encounter to awaken solidarity with migrants, and policy advocacy in Mexico and the U.S. The Florence Project is a 501(c)(3) non-profit organization that provides free legal and social services to the thousands of adults and children detained in immigration custody in Arizona on any given day. The Florence Project was founded in 1989 to provide free legal services to asylum seekers and other migrants in remote Arizona immigration detention centers and in 2017 expanding their services to migrants and asylum seekers in Heroica Nogales, Sonora, Mexico. The Florence Project’s vision is to ensure that all immigrants have access to counsel, understand their rights under the law, and are treated fairly and humanely. Human Rights First is a U.S.–based human rights organization that is working to track, as it did with the Remain in Mexico, Title 42 policy, and the Trump administration’s asylum transit ban, denials of access to asylum and other harms inflicted by the Biden administration’s asylum ban.