Declaration with Exhibits on Asylum Processing — East Bay Sanctuary Covenant v. Biden (N.D. Cal.)

Date: 2023-06-22

Summary

A declaration with four attached exhibits, filed June 23, 2023 as Document 181-2 in East Bay Sanctuary Covenant, et al. v. Joseph R. Biden, President of the United States, et al., Case No. 18-cv-06810-JST, in the U.S. District Court for the Northern District of California. The declarant submits it in support of the plaintiffs' reply on their motion for summary judgment and opposition to the defendants' cross motion. It attaches Exhibit A, a May 2023 Strauss Center report on asylum processing at the U.S.-Mexico border; Exhibit B, a Human Rights First report on the Nogales, Arizona port of entry; Exhibit C, a San Diego Union Tribune article; and Exhibit D, an International Rescue Committee report on limits on access to asylum after Title 42. The Strauss Center report describes CBP One appointments, port of entry processing and shelter conditions city by city. The filing runs 74 pages.

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Full text

Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 1 of 74

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

)
East Bay Sanctuary Covenant, et al., )
)
Plaintiffs, )
)
v. ) Case No.: 18-cv-06810-JST
)
Joseph R. Biden, President of the United States, et al., )
)
Defendants. )
)
)

DECLARATION OF JAIME PAREDES

I, Jaime Paredes, declare as follows:

1. I submit this declaration in support of Plaintiffs’ Reply to Their Motion for Summary

Judgment and Opposition to Defendants’ Cross Motion. I have personal knowledge of the facts

set forth herein, and, if called as a witness, I could and would testify competently and truthfully

as follows:

2. On Thursday, June 22, 2023, I downloaded a document from the website of the Strauss

Center for International Security and Law of the University of Texas at Austin, at

https://www.strausscenter.org/publications/asylum-processing-at-the-u-s-mexico-border-may-

2023/. The document is a report by Stephanie Leutert and Caitlyn Yates titled “Asylum

Processing at the U.S.-Mexico Border: May 2023.” The report was published online on May 31,

2023. Attached as Exhibit A is a true and correct copy of that report.

3. On Thursday, June 22, 2023, I downloaded a document from the website of Human

Rights First, at https://humanrightsfirst.org/library/a-line-that-barely-budges-u-s-limiting-access-

to-asylum/. The document is a report prepared by Christina Asencio and others titled “A Line

that Barely Budges: U.S. Limiting Access to Asylum – Nogales, Arizona Port of Entry.” The
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 2 of 74

report was published online on June 9, 2023. Attached as Exhibit B is a true and correct copy of

that report.

4. On Friday, June 23, 2023, I downloaded a document from the website of the San Diego

Union Tribune, at https://www.sandiegouniontribune.com/news/immigration/story/2023-05-

20/border-asylum-seekers-turn-backs-ports. The document is a May 20, 2023 news article

written by Kate Morrissey titled “U.S. Border Officials Have Been Turning Asylum Seekers

Away at Ports of Entry Despite New Rules.” Attached as Exhibit C is a true and correct copy of

that article.

5. On Friday, June 23, 2023, I downloaded a document from the website of the International

Rescue Committee, at https://www.rescue.org/sites/default/files/2023-

06/Limits%20on%20Access%20to%20Asylum%20After%20Title%2042.pdf. The document is

a report prepared by the International Rescue Committee and other organizations titled “Limits

on Access to Asylum After Title 42: One Month of Monitoring U.S.-Mexico Border Ports of

Entry.” The report was published online on June 23, 2023. Attached as Exhibit D is a true and

correct copy of that report.

I, Jaime Paredes, declare under penalty of perjury of the laws of the State of California and the

United States of America that the foregoing is true and correct to the best of my knowledge and

belief.

Executed on June 23, 2023, in Oakland, California.

__________________________________
___________
JAIME PAREDES

2
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 3 of 74

Exhibit A
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 4 of 74

Asylum Processing at the
U.S.-Mexico Border:
May 2023

BY STEPHANIE LEUTERT AND CAITLYN YATES
INTRODUCTION

Since November 2018, the Robert Strauss Center for International Security and Law at the University of Texas
at Austin has documented asylum processing at ports of entry along the U.S.-Mexico border through quarterly
reports. Since their inception, these reports have documented five asylum processing stages over the past five
years: 1) initial metering practices and waitlists; 2) a blanket ban on asylum processing under Title 42; 3) Title
42 exception programs; 4) the CBP One application rollout under Title 42 and; 5) the CBP One application and
port of entry asylum processing after Title 42.

The first asylum processing stage began in July 2018, when U.S. Customs and Border Protection (CBP) officers
started informing arriving asylum seekers that U.S. ports of entry were full. Simultaneously, CBP officers only
accepted a specified number of asylum seekers each day, in a process known as metering. As metering became
standardized at U.S. ports of entry, individuals, civil society groups, and Mexican government officials began
forming metering waitlists to organize growing queues of asylum seekers in Mexican border cities.!

The second asylum processing stage began in March 2020, during the Covid-19 pandemic, when CBP stopped
accepting asylum seekers at ports of entry under a Center for Disease Control’s (CDC) regulation referred to as
Title 42 authority. This authority allowed Border Patrol agents to immediately expel apprehended individuals
of certain nationalities, including asylum seekers, to the nearest Mexican city or to their home countries. It
also blocked asylum seekers from making claims at U.S. ports of entry.* Under Title 42, many of the asylum
waitlists along the border were frozen—meaning that list managers did not allow any new individuals to add
their names—and in some cities, they were dissolved altogether.*

For brief periods in 2021 and then again beginning in April 2022, the United States entered its third stage of
asylum processing by allowing Title 42 exceptions for asylum seekers along the border. These exceptions
allowed vulnerable individuals in Mexican border cities to enter the United States and request asylum.
However, the number of vulnerable individuals was larger than the number of Title 42 exception slots, which
led to Title 42 exception waitlists in certain cities. These lists were similar to the previous metering waitlists.
However, Mexican government entities, civil society organizations, and lawyers all kept different Title 42
exception waitlists, and there were often multiple lists in each city. The Robert Strauss Center’s August 2022
and November 2022 asylum processing updates included Title 42 exception waitlists in their official counts of
individuals waiting along the border.

On January 12, 2023, CBP implemented the fourth stage of asylum processing along the border when it began
requiring asylum seekers to use a mobile application known as “CBP One” to make an asylum claim at a U.S.
port of entry. Through this application, individuals located in Central and Northern Mexico can submit certain
information—including biographical and demographic details, travel history, and the individual’s sponsor
information—and request a processing appointment at a U.S. port of entry. Beginning in January 2023, roughly
740 appointments became available at a set time each morning. Since this process allowed asylum seekers to
make appointments directly with CBP, list managers dissolved all remaining metering and Title 42 exception
waitlists. However, since Title 42 was still in place, individuals could only seek asylum with a CBP One
appointment and could not directly approach a port of entry.

1 MAY 2023
On May 11, 2023, the Title 42 public health order expired—ushering in the fifth and current asylum processing
stage along the border. As of late May 2023, the CBP One application continues to be the primary method for
accessing asylum at ports of entry. However, after Title 42, CBP adjusted the system for soliciting appointments
through the application, now allowing individuals in Central or Northern Mexico to request an appointment
during a 23 hour window, and then, if offered an appointment, allowing them another 23 hour window to
accept. Additionally, the number of appointments increased from 740 a day to approximately 1,000 a day. In
the week after Title 42 ended, CBP reported processing an average of 1,070 people a day through CBP One
appointments.*

In May 2023, only eight ports of entry along the U.S.-Mexico border were processing CBP One appointments.
Figure 1 shows the status of CBP One applications by city. Green circles indicate cities with CBP One
appointments and red circles indicate cities without CBP One appointments.

Figure 1: Ports of Entry Offering CBP One Appointments (May 2023)

ee
r | ny
/

Mexicali e

ee
Tijuana San Luis Rio Colorado

——— = Agua Prieta
—~e—@ Ciudad a

Nogales

Las

\ pol ting
if ‘e Ciudad Acufia

|
ere.

ve Nuevo Laredo

Al an (oe a ‘ Cy Le Sal
c @ < [= Matamoros

~ i

Author 8 elaboration. Data collected from May 22, 2023, to May 25, 2023.

MAY 2023 2
While the application has gone through a series of changes aimed at improving accessibility, the CBP One
application still involves challenges for asylum seekers. The first are accessibility hurdles, as asylum seekers
need to be literate, speak one of the applications’ three languages (English, Spanish, and Haitian Creole), have
access to a cell phone with cell or internet service, and have basic knowledge of the new system.° If these
hurdles are surmounted, the next set of challenges center around the application’s registration process, with
asylum seekers still reporting crashes, looping error messages, and facial comparison flaws, although to a lesser
extent than during the initial application rollout in early 2023. However, the most pressing issue continues to

be that the number of daily appointments is less than the number of waiting individuals. This means that some
individuals may wait for weeks or months before receiving an appointment.

With Title 42’s end, the U.S. government also announced a new final rule, titled “Circumvention of Lawful
Pathways,” which affects asylum processing at the U.S.-Mexico border.® This final rule makes non-Mexican
individuals ineligible for asylum if they do not enter the United States via a CBP One appointment. However,
the rule also includes narrow exceptions, such as if an individual 1) presents at a port of entry and can prove
an inability to access the CBP One application, 2) enters the United States through a separate parole process
(which are currently only available to individuals from Cuba, Haiti, Nicaragua, Venezuela, Ukraine, and
Afghanistan), or 3) was denied asylum in a country en route to the United States. Individuals who present

at ports of entry but do not fall into these categories are subject to the rule and its presumption of asylum
ineligibility. Some individuals—including those who may meet these exception criteria—have struggled to even
access ports of entry following Title 42’s expiration. In some cities, Mexican authorities have sought to control
access to ports of entry to avoid lines of waiting asylum seekers.

This report provides an asylum processing update along the U.S.-Mexico border and focuses on the CBP

One appointment process, asylum processing at ports of entry, waiting asylum seekers, and migrant shelters.
Overall, asylum seekers continue to face unstable living conditions and security risks in Mexican border cities.
Many shelters are full, a number of individuals are renting rooms, staying in hotels, or sleeping on the street.

In Matamoros, Reynosa, and Ciudad Juarez, tent camps have sprung up with thousands of occupants. Certain
groups of asylum seekers also continue to experience additional challenges. Civil society organizations report
that Black, LGBTQ+, Indigenous, and non-Spanish speaking asylum seekers have faced targeted discrimination
while waiting in Mexican border cities.

The May 2023 asylum processing update draws on phone and WhatsApp interviews with asylum seekers,

government officials, members of civil society organizations, and legal service providers on both sides of the
border from May 22, 2023 through May 25, 2023. It also relies on local news articles to fill in any gaps.

3 MAY 2023

Asylum Processing at the Border Waitlists: May 2023

Mexican City CBP One # of CBP One City Conditions
Appointments Appointments

Matamoros, Open ~300 people per | Each day, CBP processes an estimated 300 people
Tamaulipas day’ from Matamoros. This includes 250 individuals
with CBP One appointments and 50 people via
— allowances by Mexico’s National Migration
Institute (Instituto Nacional de Migracion, INM).8
~250 people
via CBP One Mexican authorities control access to the city’s
appointments international bridges. Each day, INM allows
approximately 50 people to enter the bridge for CBP
~50 people via processing, referred to here as “INM allowances.”
INM allowances | Local shelters and organizations send vulnerable
people—such as families and single mothers—
— directly to the bridge.’

May 22, 2023 In the days before Title 42 ended, thousands of
migrants crossed the Rio Grande on rafts and
turned themselves in to Border Patrol. Since then,
the number of people crossing the Rio Grande has
plummeted. However, Matamoros shelters report
that they are filled to capacity with people who are
hoping to cross.

Thousands of people continue to live in a tent
camp along the Rio Grande. The number of tent
camp residents dropped precipitously as Title 42
expired, but civil society organizations have stated
that the number rebounded in the following days.!°
Following Title 42’s end, INM estimated that 5,500
migrants were in Matamoros.!!

MAY 2023 4

Asylum Processing at the Border Waitlists: May 2023 (continued)

Mexican City CBP One # of CBP One City Conditions
Appointments Appointments

Reynosa, Open ~200 people per | Every day, CBP processes approximately 200
Tamaulipas day people from Reynosa. This includes around 170
people through CBP One appointments and 30
= people via INM allowances.

~170 people Mexican authorities control access to the city’s
via CBP One international bridges. Each day, INM allows around
appointments 30 people to cross the bridge for CBP processing.

Local organizations send urgent medical cases
~30 people via directly to the bridge.

INM allowances

The city’s shelters report that they are full, with

— roughly 1,800 migrants in Senda de Vida I and

3,000 people in Senda de Vida II.

May 22, 2023 Migrants who are unable to secure a spot in one of

the city’s shelters are renting rooms or living in tent
camps. There are two tent camps in the city. The

first is an encampment near the Rio Grande with

an estimated 1,200 residents as of May 18, 2023.”

The second is an encampment outside of the Senda

de Vida I shelter with an estimated 600 families

waiting for a space in one of the shelters.

Currently the majority of these individuals are from
Haiti, Honduras, and Mexico with fewer individuals
from Guatemala, El Salvador, Colombia, Nicaragua,
and China. At the end of Title 42, INM estimated
that there were roughly 7,000 migrants residing in
Reynosa."

Local shelters report an increase in insecurity in the
tent camps and more migrant kidnappings at the
city’s bus station.

5 MAY 2023
Asylum Processing at the Border Waitlists: May 2023 (continued)

CBP One
Appointments

City Conditions

Mexican City

Nuevo Laredo,
Tamaulipas

Open

~80 people per
day

~65 people
via CBP One
appointments

~15 people via
INM allowances

May 22, 2023

In total, CBP processes approximately 80 people
from Nuevo Laredo each day. This includes around
65 people with CBP One appointments and 15
people via INM allowances.

Mexican authorities control access to the city’s
international bridges. Every day, INM contacts a
different local shelter and asks them to send 15
people to the port of entry.

Insecurity continues to be widespread in Nuevo
Laredo. The criminal organization that operates in
Nuevo Laredo has allegedly begun requesting that
all individuals traveling to the port of entry—with
or without CBP One appointments—pay them a fee.
Cartel lookouts also continue to screen for arriving
migrants at the city’s airport and bus stations.'4

There are fewer migrants in Nuevo Laredo than in
other Tamaulipas cities. On May 18, 2023, INM
estimated that there were only several hundred
migrants in the city, compared to thousands in
Reynosa and Matamoros. The majority of migrants
in Nuevo Laredo were from El Salvador, Mexico,
and Venezuela, among other countries.!°

Piedras Negras,
Coahuila

Open

~60 people per
day

~60 people
via CBP One
appointments

May 22, 2023

Every day, CBP processes approximately 60 people
from Piedras Negras. All of these individuals

have CBP One appointments, and many received
their appointments while residing in other parts of
Mexico.

The shelters in Piedras Negras are near capacity
and some migrants are renting rooms or sleeping
in abandoned houses. The majority of the migrants
are from Honduras, Venezuela, Haiti, Ecuador, and
Colombia. After Title 42’s end, INM estimated
that there were roughly 420 migrants in Piedras
Negras.!°

MAY 2023

Mexican City

CBP One
Appointments

# of CBP One
Appointments

Asylum Processing at the Border Waitlists: May 2023 (continued)

City Conditions

Piedras Negras,
Coahuila
(continued)

Just before Title 42 expired, many migrants in the
city crossed the Rio Grande and turned themselves
in to Border Patrol. Local shelters report that two
Venezuelans drowned while attempting to cross the
river during that time. Some migrants continue to
cross irregularly into the United States.

Ciudad Acuiia,
Coahuila

Closed

N/A

There is no processing via CBP One appointments
in Ciudad Acufia. CBP has processed a small
number of people who crossed the international
bridge.

Civil Protection (Proteccién Civil) continues to
maintain two asylum waitlists—one for single
adults and one for families—but the local agency is
not adding any new individuals to the lists. Many of
the people who were waiting on the two lists are no
longer in the city.

Ciudad Juarez,
Chihuahua

Open

~150 people per
day

150 people
via CBP One
appointments

May 23, 2023

Each day, CBP processes an estimated 150
individuals from Ciudad Juarez. All of these
individuals have CBP One appointments.'’ CBP
has also processed a small number of people who
crossed the international bridges.

In the days leading up to Title 42’s end, large
numbers of people crossed the Rio Grande to reach
EI Paso. At this time, the number of people residing
in the city’s tent camps dropped dramatically. These
tent camps were in front of the Ciudad Juarez

City Hall and the INM detention center, where 40
migrants died in a fire on March 27, 2023. On May
22, 2023, the Ciudad Juarez municipal police forced
the remaining migrants in the tent camps to move to
shelters.

The shelters throughout Ciudad Juarez are full
and migrants are also renting rooms. The majority
of migrants in the city are from Venezuela, with
smaller numbers from Colombia and countries

7 MAY 2023

Asylum Processing at the Border Waitlists: May 2023 (continued)

Mexican City CBP One # of CBP One City Conditions
Appointments Appointments

Ciudad Juarez, throughout Central America. Immediately following
Chihuahua the lifting of Title 42, INM estimated that there were
(continued) more than 10,000 migrants in the city."

Agua Prieta, Closed N/A There is no CBP One appointment processing in
Sonora Agua Prieta. However, local organizations report

that up to 30 people per day can be processed at the
Raul Hector Castro port of entry.

However, the criminal organization that operates in
Agua Prieta is allegedly charging migrants to enter
the city and access the port of entry. Therefore, it is
unclear how many—or if any—migrants have been
able to reach the port of entry and request asylum.

Since the end of Title 42, local organizations report
that U.S. officials return 15 to 20 migrants to Agua
Prieta each day, who are mostly Mexican nationals.
This is a roughly 50 percent decrease from when
Title 42 was still active.

The majority of migrants in the city are from
Mexico, with fewer numbers of individuals from
Guatemala. The shelters are not full, and many
migrants are renting rooms.

MAY 2023 8

Asylum Processing at the Border Waitlists: May 2023 (continued)

Mexican City

CBP One
Appointments

# of CBP One
Appointments

City Conditions

Nogales, Sonora

Open

~70 people a
day

~55 people
via CBP One
appointments

~15 people via a

physical line at
the port of entry

May 23, 2023

Each day, CBP processes an estimated 70 people
from Nogales. This includes approximately 55
people through CBP One appointments and 15
people a day from a line of asylum seekers outside
the DeConcini port of entry.

After Title 42’s end, asylum seekers began lining
up outside the DeConcini port of entry. As of May
23, 2023, there were more than 200 waiting asylum
seekers, including at least 50 children.!? Over the
previous week, an estimated 100 people had been
processed through the line (roughly 5 to 20 people
each day). Asylum seekers waiting in the line
reported that they had been trying for months to get
CBP One appointments.

The waiting asylum seekers have faced challenging
food and hygiene conditions. The Kino Border
Initiative provides meals for the asylum seekers, and
reports hearing that people were limiting their water
intake because of a lack of free, public bathrooms in
the area. In response, Nogales municipal authorities
set up a free bathroom, but it does not have running
water.

Nogales municipal authorities have discussed
creating a waitlist for the individuals waiting at the
port of entry and then asking them to vacate the
premises. A new waitlist would be immediately
closed to additional registrants.

The majority of migrants in Nogales are from
Mexico, with smaller numbers from Venezuela,
Haiti, Colombia, and Guatemala. Additionally, an
increasing number of Indian nationals have recently
been crossing between ports of entry in Pima
County, near Nogales.”

9 MAY 2023

Asylum Processing at the Border Waitlists: May 2023 (continued)

Mexican City CBP One # of CBP One City Conditions
Appointments Appointments

San Luis Rio Closed N/A There is no CBP One appointment processing in
Colorado, Sonora San Luis Rio Colorado.

The Casa del Migrante La Divina Providencia
shelter reports that the post Title 42 switch to the
new CBP One system has been positive for its
residents. During May 2023, ten people at the
shelter received CBP One appointments. The
majority of asylum seekers waiting in the city are
from Mexico and countries throughout Central
America.

On May 6, 2023, Mexican authorities rescued

113 kidnapped migrants from a safe house in San
Luis Rio Colorado. The individuals were from 13
different countries across Latin America, Africa,
and Asia and were being held against their will and

extorted.!
Mexicali, Baja Open ~25 people per Every day, CBP processes approximately 25 people
California day from Mexicali.” All of these individuals have CBP

One appointments. Local officials report that CBP
— aims to increase the total number of CBP One
appointments in the city to 40 people a day in the

~25 people coming weeks.”
via CBP One
appointments As the summer months begin, the city opened a new

cooling center for migrants. The center currently
— has 30 beds, but its capacity is expected to increase
in the coming weeks.** On May 17, 2023, shelters
May 23, 2023 in the city reported being at around two-thirds
capacity.”

After Title 42 ended, INM estimated that there were
around 1,300 migrants residing in the city.”°

MAY 2023 10

Asylum Processing at the Border Waitlists: May 2023 (continued)

Mexican City CBP One # of CBP One City Conditions
Appointments Appointments

Tijuana, Baja Open ~240 people per | Each day, CBP processes around 240 people in
California day Tijuana. All of these individuals have CBP One
appointments.”’ Mexican officials report that CBP
— aims to increase the total number of CBP One
appointments in the city to 300 people per day with

~240 people three processing times.
via CBP One
appointments While CBP has processed some asylum seekers

who have reached the international dividing line,

— it has also sent others back to Tijuana. Local
organizations also report that there has been a recent
May 23, 2023 uptick in individuals who are returned to Tijuana
after arriving at the port of entry with a CBP One
appointment.

In the days leading up to Title 42’s expiration,
hundreds of migrants crossed between the two walls
on the Tijuana-San Diego border, with another camp
forming east of Tecate in the Jacumbo area. These
individuals hoped that they would be processed into
the United States before the public health order’s
end. At its peak, more than 1,000 individuals were
waiting in between the walls—some staying there
for days—before U.S. Border Patrol eventually
processed everyone.”®

Tijuana shelters are currently full, and migrants

are also renting rooms in motels. The majority of
the migrants in Tijuana are from Haiti, Venezuela,
Honduras, Mexico, and Russian speaking countries
(including Russia, Uzbekistan, and Kazakhstan). At
the end of Title 42, INM estimated that there were
3,000 migrants in the city.”

*The numbers should be interpreted as a general range rather than an exact figure.

11 MAY 2023

ENDNOTES

1 U.S. Department of Homeland Security Office of the Inspector General, “CBP Has Taken Steps to Limit Processing of
Undocumented Aliens at Ports of Entry,” October 27, 2020, https://www.oig.dhs.gov/sites/default/files/assets/2020-10/OIG-21-02-
Oct20.pdf.

2 U.S. Department of Health and Human Services, “Control of Communicable Diseases; Foreign Quarantine: Suspension of
Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes,” March 24, 2020,
https://www.federalregister.gov/documents/2020/03/24/2020.-06238/control-of-communicable-diseases-foreign-quarantine-
suspension-of-introduction-of-persons-into.

3 U.S. Department of Health and Human Services, “Control of Communicable Diseases; Foreign Quarantine: Suspension of
Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes,” Federal
Register, March 24, 2020, https://www.federalregister.gov/documents/2020/03/24/2020.-06238/control-of-communicable-diseases-
foreign-quarantine-suspension-of-introduction-of-persons-into.

4 US. Department of Homeland Security, “Border Encounters Drop in First Week of Biden-Harris Administration’s Comprehensive
Plan to Manage The Border,” May 19, 2023.

5 Melissa del Bosque, “Facing Bias: CBP’s Immigration App Doesn’t Recognize Black Faces, Barring Thousands from Seeking Asy-
lum,” The Border Chronicle, February 7, 2023, https://www.theborderchronicle.com/p/facing-bias-cbps-immigration-app.

6 U.S. Citizenship and Immigration Services and Executive Office for Immigration Review, “Circumvention of Lawful Pathways,”
Federal Register, May 16, 2023, https://www.federalregister.gov/documents/2023/05/16/2023-10146/circumvention-of-lawful-path-
ways.

7 Carlos Figueroa, “Realizara Gobierno de Matamoros acciones de limpieza en areas que ya fueron despejadas por los migrantes,” E/
Mercurio, May 21, 2023, https://elmercurio.com.mx/la-region/realizara-gobierno-de-matamoros-acciones-de-limpieza-en-areas-que-
ya-fueron-despejadas-por-los-migrantes.

8 This report uses the term “INM allowances” to describe the number of people that Mexico’s National Migration Institute allows to
access a city’s ports of entry each day.

9 “Migrantes acuden a albergues en Matamoros mientras esperan cruce a EU con permiso de Titulo 8,” Milenio, May 15, 2023,
https://www.imilenio.com/estados/migrantes-esperan-matamoros-cruce-eu-permiso-titulo-8.

10 Miguel Jiménez, “Repoblan migrantes zona de Matamoros,” E/ Manana, May 17, 2023, https:/Avww.elmanana.com/tamaulipas/
matamoros/repoblan-migrantes-a-la-orilla-del-rio-bravo/5708420.

11 Jesus Estrada, “Permanecen 26 mil 560 migrantes en ciudades de la frontera norte de México,” La Jornada, May 14, 2023, https://
www.jornada.com.mx/notas/2023/05/14/politica/permanecen-26-mil-560-migrantes-en- ciudades-de-la-frontera-norte-de-mexico/. 12
Tamara Haydée Segura Herrera and Oscar Misael Hernandez-Hernandez, “Los rumores en un nuevo campamento de migrantes en
Matamoros,” Nexos, May 18, 2023, https://migracion.nexos.com.mx/2023/05/los-rumores-en-un-nuevo-campamento-de-migrantes-en-
matamoros/.

13 Jesus Estrada, “Permanecen 26 mil 560 migrantes en ciudades de la frontera norte de México,” La Jornada, May 14, 2023, https://
www.jornada.com.mx/notas/2023/05/14/politica/permanecen-26-mil-560-migrantes-en- ciudades-de-la-frontera-norte-de-mexico/.

14 “Nuevo Laredo: Bandas criminales extorsionan a migrantes y cobran para cruzar la frontera,” A/ Dia Dallas, May 16, 2023, https://
www.dallasnews.com/espanol/al-dia/mexico/2023/05/16/nuevo-laredo-halcones-criminales-extorsion-migrantes-frontera-texas-tamau-
lipas/.

15 Gaston Monge, “Nuevo Laredo recibe el 1% de migrantes en frontera de Tamaulipas,” En Linea Directa, May 18, 2023, https://
enlineadirecta.info/2023/05/18/n-laredo-recibe-el- 1 -de-migrantes-en-frontera-de-tamaulipas/.

16 Jesus Estrada, “Permanecen 26 mil 560 migrantes en ciudades de la frontera norte de México,” La Jornada, May 14, 2023, https://
www.jornada.com.mx/notas/2023/05/14/politica/permanecen-26-mil-560-migrantes-en- ciudades-de-la-frontera-norte-de-mexico/. 17
Hérika Martinez Prado, “A un paso de asilo, en el dia de su cumpleafios,” E/ Diario de Juarez, May 18, 2023, https://www.eldiario-
dechihuahua.mx/estado/a-un-paso-del-asilo-en-el-dia-de-su-cumpleanos-202305 18-2056869.html.

18 Jesus Estrada, “Permanecen 26 mil 560 migrantes en ciudades de la frontera norte de México,” La Jornada, May 14, 2023, https://
www.jornada.com.mx/notas/2023/05/14/politica/permanecen-26-mil-560-migrantes-en- ciudades-de-la-frontera-norte-de-mexico/. 19
Marco Manriquez, “Sigue aumento gradual de migrantes en Nogales,” E/ Imparcial, May 19, 2023, https://www.elimparcial.com/
sonora/nogales/Sigue-aumento-gradual-de-migrantes-en-Nogales-202305 19-0005 .html.

20 Danyelle Khamara, “Number of migrants from India increases at Arizona-Mexico border,” Tucson.com, April 19, 2023, https://tuc-
son.com/news/local/subscriber/number-of-migrants-from-india-increases-at-arizona-mexico-border/.

MAY 2023 12

21 Cristina Gomez Lima, “Rescatan a 113 migrantes secuestrados en Sonora,” La Jornada, May 6, 2023, https://www.jornada.com.

mx/notas/2023/05/06/estados/rescatan-a-1 13-migrantes-secuestrados-en-sonora/.

22 Juan José Solano, “Tiempos de espera en aplicacién CBP One provoca abandono de proceso,” E/ Imparcial, May 23, 2023, https://
www.elimparcial.com/mexicali/mexicali/Tiempos-de-espera-en-aplicacion-CBP-One-provoca-abandono-de-proceso-20230522-0020.
html.

23 Ibid.

24 Karina Bazarte, “Mexicali opens cooling center for migrants as temperatures rise,” Fox KYMA, May 17, 2023, https://kyma.com/
news/2023/05/17/mexicali-opens-cooling-center-for-migrants-as-temperatures-rise/.

25 Juan José Solano, “Hay un 62% de ocupacion en albergues de la ciudad,” E/ Imparcial, May 17, 2023, https:/Avww.elimparcial.
com/mexicali/mexicali/Hay-un-62-de-ocupacion-en-albergues-de-la-ciudad-202305 16-0026.html.

26 Andrea Jiménez, “Quedan sdlo 800 espacios para migrantes en Mexicali,” La Voz de La Frontera, May 11, 2023, https:/(www.
lavozdelafrontera.com.mx/local/quedan-solo-800-espacios-para-migrantes-en-mexicali- 10048181 .html.

27 “Citas de CBP One por El Chaparral aumentaran a 280 diarias: Marina,” May 16, 2023, Punto Norte, https://puntonorte.
info/2023/05/16/citas-de-cbp-one-por-el-chaparral-aumentaran-a-280-diarias-marina/.

28 Kate Morrissey and Hamed Aleaziz, “Hundreds of migrants held between San Diego border walls as Title 42 ends,” The San Diego
Union-Tribune, May 11, 2023, https://www.sandiegouniontribune.com/news/immigration/story/2023-05-1 1/title-42-immigration-bor-
der-policy-expires.

29 Jesus Estrada, “Permanecen 26 mil 560 migrantes en ciudades de la frontera norte de México,” La Jornada, May 14, 2023, https://
www.jornada.com.mx/notas/2023/05/14/politica/permanecen-26-mil-560-migrantes-en- ciudades-de-la-frontera-norte-de-mexico/.

13 MAY 2023
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 18 of 74

Exhibit B
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 19 of 74

Human
Rights
First

FLORENCE
IMMIGRANT
@ & REFUGEE
| RIGHTS PROJECT
Kino Border Initiative

Iniciativa Kino

para la Frontera

U.S Limiting Access to Asylum
Nogales, Arizona Port of Entry

June 2023
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 20 of 74

Introduction and key findings

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:

e 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.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 21 of 74

e 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.

e 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.

e 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.

e Aline 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
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 22 of 74

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.

View of the U.S.-Mexico border from Nogales, Arizona.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 23 of 74

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.

CBP restricts access to asylum through a line that barely budges

U.S. officers must allow people to seek asylum in accordance with Title 8 of U.S. immigration
law and treaties binding on the United States. Yet, despite the requirements of U.S. and
international law, since Title 42 ended, the Biden administration has limited access to
asylum through its asylum ban and limited processing of people seeking asylum by failing to
allocate sufficient resources to this function. CBP officers at the DeConcini Port of Entry
have functionally restricted entry of people seeking asylum who present themselves at the
port without a CBP One appointment by prioritizing the processing of those with CBP One
appointments. In doing so, CBP officers have left hundreds of families, children and other
people in need of immediate protection stranded - treated as though they are not priorities -
waiting for over 15 nights and counting in a line that barely budges. Though the CBP officers
have not affirmatively turned anyone away from waiting in line at the port of entry (as was
common under prior metering schemes in 2017 - 2020), the CBP officials’ prioritization of
those with CBP One appointments contributes to the increasing line of persons who should,
under U.S. laws, be provided with processing in a timely manner.

A few days after the end of Title 42, hundreds of individuals and families who had been
waiting in Nogales, Mexico unable to seek asylum - with one family having waited for up
to a year - and the majority of whom had been attempting to obtain a CBP One
appointment for months, began to line up in a calm and orderly way along a thoroughfare
outside the DeConcini Port of Entry to seek asylum in accordance with Title 8 of U.S. law.
Among those waiting in line were infants, young children, adolescents, pregnant and
lactating women, individuals with serious medical conditions, Indigenous language
a4 speakers, and elderly individuals. The majority of the individuals and families who first
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 24 of 74

lined up were Mexican and were not subject to the Biden administration asylum ban for
seeking protection at a port of entry without a CBP One appointment. There were also a
few Haitian individuals and couples, including a pregnant woman, who were waiting in
line and would be subject to the Biden administration asylum ban but nonetheless are
required by law to be processed at a port of entry regardless of whether they have an
appointment.

On May 22, 2023, following the first week of waiting, human rights monitors observed that
everyone in line - from the first to the last - were all going on eight nights of sleeping at
the port of entry because the line had barely budged. Only a limited number of people are
allowed at a time into the roofed hallway leading up to the “limit line,” the official entry
point to U.S. soil, where CBP officers stand behind closed doors. The majority of those
waiting remained outside the turnstile that demarcates the entrance to the port from the
public thoroughfare outside. These individuals and families waiting outside had no contact
with the CBP officers inside the port and reported that they received no explanation as to
why the line was hardly advancing.

During this first week of waiting, people waiting to seek asylum reported that they did not
have access to a public bathroom, which was apparently due to needed repairs that were
subsequently undertaken. Lack of access to public toilets has again been a recent issue
due to additional maintenance required. Local municipal authorities are bringing portable
bathrooms and potable water to the plaza so that those persons waiting in line may be
able to access them. However, these portable restrooms are driven to and from the plaza
each day and are not accessible all day and night. These inhumane conditions led some
families to decrease their water intake and resulted in dehydration and the spread of
preventable, communicable illnesses such as gastrointestinal and respiratory illnesses
that required evacuation of several children in need of urgent medical care.

e Asingle mother traveling with her three young daughters aged four, six, and 11 who
recounted to a Human Rights First researcher that she was fleeing violent harm in
Mexico, was sleeping with them outside on the concrete where they had spent the last
eight days and nights. She shared her incessant fears: “I'm afraid for my girls. You
can’t sleep because you don't know if they'll be snatched. You start to become
psychologically traumatized. Because I’m a woman, | can't defend myself. There’s no
security [here].” Nearly three weeks later, on June 1st, the same Mexican single mother
with her three young daughters was going on her 18th night waiting to seek asylum
protection, having at one point lost her spot in the line, and likely faced an additional
night or two of waiting.

e Anelderly woman traveling with her children and grandchildren, a family group of 12
who were fleeing violent harm in Mexico, sat fatigued on a concrete bench at the very
end of the line. They were in the first group of people who arrived at the port to wait. The
grandmother shared that she felt unsafe and was going on her eighth day and night of
sitting and sleeping at that exact spot, also with nothing more than a blanket. During
that first week of waiting, Mexican authorities stopped allowing more individuals into the
interior roofed hallway nearest to the port's entrance so the individuals and families
waiting in the outside portion of the line had hardly budged.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 25 of 74

A single mother and her three daughters
slept outside the DeConcini Port of Entry with
just blankets and waited 18 nights to seek asylum.

The majority of individuals and families, including those with infants, children, elderly, and
other vulnerable individuals, report spending over 15 nights on average waiting to seek
life-saving access to safety in the United States. Many endure sleeping outside on the
concrete floor without shelter or security for most of their wait, and rely on the Kino Border
Initiative and other volunteers who provide food, water, blankets, and limited medical
attention.

Despite the requirements of U.S. law, CBP has failed to allow all but a miniscule number of
those waiting in line without appointments to seek asylum each day. CBP has not
disclosed how many individuals are processed without appointments at the DeConcini
Port of Entry. Through interviews with people waiting in line, monitors learned that during
the first week, anywhere from two to 13 individuals were processed at the end of each day,
nearly always very late in the evening such as midnight, 1 a.m., or 2 a.m., after those with
CBP One appointments were prioritized throughout the day. People waiting in line
indicated that during the second and third weeks, anywhere from 10-15 individuals were
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 26 of 74

processed each day at varying times. The DeConcini Port of Entry has only been
processing approximately 55 individuals with CBP One appointments per day, according
to a recent report issued by the Strauss Center for International Security and Law. Shortly
after issuance of the Strauss Center report, on June 1, 2023 DHS increased daily CBP One
appointments from 1,000 to 1,250 borderwide, though it is unknown how many additional
appointments, if any, have been allocated to the Nogales Port of Entry.

Mexican asylum seekers trapped waiting in their country of feared persecution

The majority of those waiting in line at the DeConcini Port of Entry during the first two weeks
were Mexican asylum seekers. Many of the Mexican asylum seekers reported that they had
been waiting in Nogales, Mexico for months and a few reported waiting up to a year, unable
to seek asylum first because of Title 42 – forcing them to wait long periods to access NGO-
led Title 42 exemptions processes, and then because they were unable to obtain an
appointment via the CBP scheduling system which functions like a lottery. These Mexican
individuals and families are not subject to the asylum ban for entering without a CBP One
appointment and U.S. law requires that all individuals seeking asylum at ports of entry are
processed into the United States. Yet in contravention of U.S. refugee and immigration law,
CBP has left Mexican asylum seekers presenting at the port of entry to wait for over two
weeks, trapped inside their own country of feared persecution and at continued risk of
harm.

People fleeing persecution in Mexico, a country that directly borders the United States,
cannot wait. Access to territory and to asylum for people fleeing persecution in their home
country is a central tenet of international refugee law. The Biden administration’s decisions
to limit access to asylum, limit asylum processing capacity by failing to sufficiently allocate
resources to this function at ports of entry, and prioritize access to asylum for those with
CBP One appointments in turn restricts the right to seek life-saving protection for Mexican
asylum seekers and forces them to remain exposed and at risk of persecution in their own
country. These actions also restrict access to protection for people who have fled other
countries, including those in immediate need of access to protection due to particular
vulnerabilities or high risks.

For Mexican individuals and families, the threat of persecution by those they are fleeing –
such as violent cartels and other organized crime groups that exercise control over territory
and often work in collusion with Mexican authorities – is still palpable as they are forced to
continue to wait in northern Mexico in the hopes of finally having access to safety. The U.S.
State Department 2022 report on human rights in Mexico finds that:

“Significant human rights issues included credible reports of: unlawful or
arbitrary killings by police, military, and other governmental officials;
forced disappearance by government agents; torture or cruel, inhuman,
degrading treatment or punishment by security forces; harsh and life-
threatening prison conditions; arbitrary arrest or detention; serious acts
of government corruption; insufficient investigation of and accountability for
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 27 of 74

gender-based violence, including domestic or intimate partner violence;
crimes involving violence or threats of violence targeting lesbian, gay,
bisexual, transgender, queer, or intersex persons; and crimes involving
violence or threats of violence targeting persons with disabilities.

Impunity and extremely low rates of prosecution remained a problem for all
crimes, including human rights abuses and corruption. There were reports
some government agents were complicit with international criminal
gangs, and prosecution and conviction rates were low for these abuses.

Criminal elements, including local and transnational gangs and narcotics
traffickers, were significant perpetrators of violent crimes and committed
acts of homicide, torture, kidnapping, extortion, human trafficking,
bribery, intimidation, and other threats, resulting in high levels of violence
and exploitation. The government investigated and prosecuted some of
these crimes, but the majority remained uninvestigated and unprosecuted.”!

People from Mexico waiting to seek asylum outside the DeConcini Port of Entry expressed
their fears of persecution in Mexico and desperation to access immediate protection.

e A female-headed family consisting of a Zenaida*? and her 11-year-old daughter, along

with Zenaida’s 's daughter-in-law, Yaneth*, and Yaneth’s two young children, aged four
and one, were waiting to seek asylum outside the DeConcini Port of Entry for eight days
at the time they spoke to a Human Rights First researcher in early June 2023. They had
spent the last five nights sleeping outside the port on the concrete of the public
thoroughfare with blankets other asylum seekers had left behind. They recounted
fleeing death threats and gender-based violence by violent cartel members in Mexico
who burned Yaneth’s 4-year-old son, killed Yaneth’s sister, and disappeared Yaneth's
husband (Zenaida’s son), while Zenaida herself was kidnapped and beaten and her
brother was kidnapped and found dead. Zenaida shared:

“The days feel eternal. Every day we're still trying to get a [CBP One] appointment.
Each time we get in a taxi, we’re asked where we're from, and I’m afraid to tell them.
Wherever we go, we're constantly afraid they [the cartel] will find us. They're
everywhere.”

These women and their children arrived in Nogales a month prior under Title 42 and
were blocked from seeking asylum. Zenaida’s 11-year-old daughter fell ill with diarrhea
and vomiting while they were living out on the street. An elderly man approached them
and offered them a room, which turned out to be the same room he slept in and where
he strategically placed his bed blocking the front door. Shortly after, he began to

12022 Country Reports on Human Rights Practices: Mexico,” U.S. State Department, available at:
https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/mexico/.
? An asterisk* indicates use of a pseudonym to protect an individual's confidentiality.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 28 of 74

sexually harass them, leading Zenaida and Yaneth to fear the worst for themselves and
their children. They managed to escape and fled directly to the DeConcini Port of Entry
where they had been sleeping the past five nights outside on the concrete. Zenaida
expressed:

“Why does no one hear us? We are so scared. We're afraid when people look at us
and ask us where we're from. We cannot wait here.”

e Asingle mother and her young daughters fled southern Mexico when members of an
armed criminal group that controls part of the territory threatened to kill her at gunpoint
and left her threatening messages stained in blood when she would not and could not
pay their extortion fees targeting her small floral business.

“| had to pull my daughters from school. There, if you don’t pay, they give you 24
hours to leave or they'll kill your daughters or family. And since it has happened, you
grab what you can because it psychologically traumatizes you - that you'll appear
chopped to pieces in a body bag - and you've seen it. Those who have a bit more
resources survive paying extortion fees. The local police in these small towns
disregard you, possibly because they're afraid.”

me \

Two young girls spend their days waiting with
their mother outside the DeConcini Port of Entry.

e A family consisting of a mother, father, and three children aged eleven, seven and
three, fled southern Mexico after being internally displaced due to cartel violence
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 29 of 74

where the father was then threatened and beaten by cartel members. He went to the
police station to file a police report and was instead handcuffed by the police officers
and thrown into a cell for three days with members of the criminal group who beat
him so severely he required surgery afterward. As he shared his story with a Human
Rights First researcher while waiting in line outside the port of entry, his voice lowered
to a whisper before mentioning those who shall not be named - the cartel - as he
looked around warily and said: “The police themselves handed me over to these
criminals. You no longer know who is good and who is bad. Mentally, | still have
panic attacks.”

e A family consisting of a mother, father and five minor children fled southern Mexico
when the cartel attempted to forcibly recruit the father and threatened him with death.
They escaped but his brother did not have a chance and the cartel killed him.

Many Mexican asylum seekers have shared with Kino Border Initiative staff that they feel
unsafe because the Mexican National Guard and police forces? have taken photos and
videos of them waiting in line without their consent. One family told Kino Border Initiative
staff that their family members called them and told them they had seen them on
Facebook in a video someone uploaded, showing scenes at the port of entry. They now
fear that they will be located and harmed by their persecutors. In general, it is less than a
one or two days’ journey from southern Mexican states to Nogales, Mexico, so an average
wait time of 15 days leaves these Mexican families in great danger if their perpetrators are
able to locate them quickly at or near U.S. ports of entry.

People seeking asylum face enormous challenges in securing a CBP One appointment

Problems include insufficient appointments; lack of access to
smartphones, electricity, and internet data; glitches; language access
deficiencies; and the app’s continuing failures to recognize darker skin
tones.

People waiting to seek asylum in Nogales, Mexico face numerous barriers to seeking
asylum, including the lack of sufficient CBP One appointments: financial, technological
and other equal access deficiencies; language access deficiencies; and continuing failures

$ The U.S, State Department 2022 Report on Human Rights Practices in Mexico finds that “Significant human rights
issues included credible reports of: unlawful or arbitrary killings by police, military, and other governmental
officials; forced disappearance by government agents; torture or cruel, inhuman, degrading treatment or
punishment by security forces; harsh and life-threatening prison conditions; arbitrary arrest or detention; serious
acts of government corruption (...). Impunity and extremely low rates of prosecution remained a problem for all
crimes, including human rights abuses and corruption. There were reports some government agents were
complicit with international criminal gangs, and prosecution and conviction rates were low for these abuses.
Criminal elements, including local and transnational gangs and narcotics traffickers, were significant perpetrators of
violent crimes and committed acts of homicide, torture, kidnapping, extortion, human trafficking, bribery,
intimidation, and other threats, resulting in high levels of violence and exploitation. The government investigated and
prosecuted some of these crimes, but the majority remained uninvestigated and unprosecuted.”
4

Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 30 of 74

to recognize darker skin tones. While the number of appointments available across the
entire border have reportedly recently increased to 1250 per day, only a negligible portion
of these appointments have been available to people waiting in Nogales. At the time that
DHS provided 1,000 daily CBP One appointments, the Nogales port of entry only
processed 55 persons a day.

While it is unknown if or how many additional appointments will be allocated to Nogales,
even if the appointments at Nogales increase proportionally to approximately 69
appointments a day out of the overall border total of approximately 1250 persons, this
means that only 5.5% of all available appointments would be allotted to the Nogales
Port of Entry, one of eight total ports across the border where people can present via CBP
One. DHS and CBP officials have long stated numerous times that appointments are
allocated based upon each port's capacity constraints, which begs the question, “why is
the only port of entry with CBP One appointments for a span of nearly over 600 miles
(from the California border to El Paso, Texas) so poorly resourced to process only 55
asylum seekers per day?” People waiting to seek asylum in Nogales have noticed very
little improvement in processing since the end of Title 42 and continue to express
exasperation at their futile attempts to obtain an appointment each day through the CBP
One system which functions like a lottery.

e A Mexican couple traveling with their five minor children who have been waiting
outside the Nogales port of entry to seek asylum and were previously in Ciudad
Juarez, shared: “We arrived to Ciudad Juarez in March but never attempted to cross
[between ports] because we were afraid. My husband and | have five young children.
We're a family of seven. We've been trying with the [CBP One] application since we
arrived in March. I'd complete all the steps, but it would tell me that there wasn't
an appointment for a group of seven.”

e In early May 2023, a Venezuelan woman crossed into the United States from
Matamoros, Mexico to seek asylum and was separated by CBP from her family and
expelled under Title 42 to Nogales, Mexico on May 7, 2023. She shared with a Human
Rights First researcher that she had been in Mexico since October 2022, blocked
under Title 42 from seeking asylum, and had been attempting to obtain a CBP One
appointment since mid-February 2023. She is stranded alone in Nogales, Mexico
together with two other Venezuelan women she met who were also expelled alone.
She shared: “The three of us are each trying every day to request an [CBP One]
appointment. We try at 2:00, 3:00, 4:00 in the morning, at all hours, and nothing.

We've been in Nogales for almost a month now.”

4 On May 10, 2023, the CBP One application transitioned to a new scheduling system that allows an individual to
request an appointment during a 23-hour period rather than at a designated time as it first functioned. “CBP Makes
Changes to CBP One App,” U.S. Customs and Border Protection, available at:
https://www.cbp.gov/newsroom/national-media-release/cbp-makes-changes-cbp-one-app
4

Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 31 of 74

e AColombian male young adult traveling alone who has been waiting outside the
Nogales port of entry to seek asylum for over two weeks after futile attempts to
schedule a CBP appointment was unaware that without an appointment he would
likely be barred from asylum under the asylum ban, subject to a higher screening
standard, and could be deported to Colombia where he feared persecution. He
shared: “I feel unsafe here in Mexico. | can’t apply for asylum [here]. If the [CBP
One] appointment took three days, I'd wait. But it doesn’t. I've been trying and
nothing. And | have to rent a room and pay for food. | can’t keep waiting.”

In order to even attempt to secure a CBP One appointment, people seeking asylum must
have daily access to a smartphone with certain capabilities, electricity, internet and/or
phone reception with data. The use of this appointment system - and the asylum ban’s
provisions barring refugees from asylum if they do not have an appointment - prevents
many vulnerable people who lack financial resources or access to technology from
seeking asylum. Some families do not have phones or have had their phones stolen. Other
families seeking asylum have had to make the choice between going hungry and buying
data for their phones.

e A Mexican single mother and her three young daughters have been in Nogales since
January trying each day to obtain an appointment. She said: “I’d run out of internet
data and instead of buying food, I’d need to buy more data.” As a result, she has
been forced to restrict her and her daughters’ food consumption even further, and
even then, there have been days she couldn't afford to buy internet data and was
unable to request a CBP One appointment to seek life-saving asylum protection. She
shared: “Many paisanos cross through the border. | want to enter lawfully.”

e A Mexican family had been waiting to seek asylum outside the Nogales port of entry
for nearly eight nights when the father informed a Human Rights First researcher that
the family's only phone was stolen from under him while they slept at night on the
concrete outside the port. “We don’t have a phone now and | don’t have money to
buy another one. We'll continue to wait here.”
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 32 of 74

Asylum seekers charge their
phones at the DeConcini Port of Entry.

The asylum ban disproportionately impacts vulnerable populations, such as Indigenous
people seeking asylum protection who face Indigenous language exclusion in use of the
CBP One application, which is only available in English, Spanish, and Haitian Creole, and
more recently in Russian and Portuguese. The Florence Project has monitored cases of
Indigenous Guatemalan and Mexican families waiting for months to seek access to
asylum, first blocked under Title 42 - prompting submission on their behalf of Title 42
exemption requests due to their inability to use the CBP One app.

Of the five exemption requests submitted on behalf of Indigenous language speakers
in March 2023, all five requests were outright ignored - for months - by the Tucson CBP
Office of Field Operations (the entity to which Title 42 exemption requests were to be
directed). Of those five Indigenous-language families (totaling 13 persons), only two
families were eventually able to secure an appointment via the CBP One application after
much struggle. Of the remaining three families, one family seems to no longer have the
same phone number and Florence Project staff cannot contact them; one Indigenous
Mexican family felt they had no choice but to wait in line at the DeConcini Port of Entry in
the second half of May; and the final family - a Mayan family from Guatemala who will be
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 33 of 74

subject to the asylum ban if they cannot enter with an appointment - is still waiting in
Nogales and struggling with the CBP One application.

The Kino Border Initiative consistently receives new arrivals who are Indigenous
community members and Indigenous language speakers from southern Mexico and
Guatemala who struggle to use the CBP One application. Additionally, asylum seekers
placed in expedited removal must pass credible fear interviews to have an opportunity to
apply for asylum, but Indigenous people seeking asylum are often forced to interview in
languages they do not fluently speak. The asylum ban will be applied in these interviews to
bar them based on inability to use the CBP One app and language access barriers in these
interviews will further endanger Indigenous asylum seekers and fuel their deportation.

Since its inception in January 2023, the CBP One application has been plagued with
glitches and technical errors. Kino Border Initiative staff spoke with Ignacio*, his wife and
children who kept getting an error code indicating the name of their emergency contact in
the US was missing, when it was clearly written in the app. Although subsequent versions
have led to some improvements, particularly with regard to how appointments are
scheduled, individuals with darker skin tones continue to experience problems with CBP
One's facial recognition software even after the May 10, 2023 update.

e In mid-May 2023, Kino staff witnessed a Venezuelan woman who was notified of a
CBP One appointment and had 23 hours under the most recent software update to
accept the appointment on the app. She struggled to and nearly missed the deadline
on account of the app’s facial recognition software not recognizing her darker
pigmentation. Kino staff witnessed her repeated attempts over hours and growing
anguish as she moved to different spots within their fully-lit, bright shelter. They even
placed strong lighting over her face. She ultimately succeeded in capturing her image
after these anguished attempts. However, it should be noted that had she not been
able to secure such shelter in the first place or had other sources of light as additional
support, the woman likely would have missed out on her CBP One appointment for
failure to confirm the appointment slot in time. Simply put, had she been displaced
nearly anywhere else - in dimly lit shelters, on the street, or waiting in line at or near a
port of entry, the app’s facial capture software would have likely failed this woman, as
it continues to do for countless others.

Asylum cannot be scheduled: people seeking asylum are in need of immediate access to protection

In addition to people seeking asylum from Mexico, asylum seekers from a range of other
countries are also waiting to seek asylum in Nogales, Mexico. These include individuals and
families from Colombia, Ecuador, Guatemala, Haiti, and Venezuela. Many of these people
have spent months struggling and failing to secure CBP One appointments.

As they wait in Nogales, Mexico, people seeking asylum are at risk of kidnapping,
disappearance, rape, trafficking, and extortion. The U.S. State Department has issued a Level
a4 3 Reconsider Travel advisory for the state of Sonora, Mexico where Nogales is located,
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 34 of 74

stating that violent crime such as homicide, kidnapping, carjacking and robbery is
widespread and common in Mexico with Sonora being a key location used by the
international drug trade and human trafficking networks. Many asylum seekers in Mexico
suffer horrific violence at the hands of Mexican government agents and cartels, with many
targeted precisely because they are migrants or seeking asylum in the United States.
Human Rights First has tracked over 13,000 reports of murders, kidnappings, rapes, and
other violent attacks against migrants and asylum seekers blocked in or expelled to Mexico
due to Title 42 since President Biden took office.

The Kino Border Initiative, the Florence Project, and Human Rights First monitors spoke with
hundreds of asylum seekers waiting in Nogales, Mexico over the last month who did not
know about the asylum ban and the penalties it inflicts. Upon learning of the Biden
administration asylum ban, people seeking asylum confront an impossible choice of whether
to seek safety at the port of entry without a CBP One appointment, a step that - for asylum
seekers who transited other countries - could bar them from asylum under the ban and
return them to life-threatening harm, or wait indefinitely in situations of life-threatening
danger until they can schedule an appointment through the CBP One system which
functions like a lottery.

Faced with these threats, some people who have been unable to get one of the limited CBP
One appointments have approached the port of entry to seek asylum. If they choose to
present at the port without an appointment and they are not Mexican nationals, then they
will now risk being subjected to the Biden administration asylum ban and deported back to
danger even if they are refugees with well-founded fears of persecution. People waiting to
seek asylum at ports of entry without an appointment who, upon being processed into the
United States, could be barred by the asylum ban regardless of the persecution they fled
and their eligibility for asylum under U.S. law include:

e AColombian LGBTQI+ woman traveling alone was waiting outside the Nogales port of
entry to seek asylum for 15 nights, 12 of which she had spent sleeping on the concrete in
line. She reported that she was unaware of the asylum ban and its damaging
consequences for entering at a port of entry without an appointment. Yet she was
fleeing persecution in Colombia and serious harm in Mexico. In Colombia, she was
internally displaced by an armed group. She and her partner were sexually assaulted by
Colombian police officers. She tried to file a complaint but didn’t receive state protection
and had to flee. While transiting on a bus to northern Mexico, a Mexican state police
officer boarded the bus and inspected those who were Colombian. The female officer
instructed her to enter the bus bathroom where she stripped her of her clothing and
digitally penetrated her vaginally without use of a glove, alleging she was transporting
cocaine, and then robbed her of her money. Upon arrival at a bus station in Sonora she
experienced an attempted kidnapping. “I’m afraid to be here. I’m afraid criminal
groups will try to kidnap me again.”

e A Venezuelan woman traveling alone who had also been waiting 15 nights outside the
Nogales port of entry waiting to seek asylum shared with a Human Rights First
researcher that she was fleeing persecution in Venezuela and that her sister had been
murdered by the guerilla, a non-state armed group that exercises control over territory,
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 35 of 74

as she clutched a manilla envelope holding proof of her death. She did not know that
the Biden administration's asylum ban would likely bar her from asylum protection for
presenting at the port without a CBP One appointment and that she risked deportation
back to Mexico. “But what about this?” she asked, holding up her proof of
persecution, stunned to learn that she could be blocked from applying for asylum
protection simply for not having an appointment. “I have nowhere to go. | cannot wait
here [in Mexico]. | need asylum.”

e Kino Border Initiative staff also met a group from Colombia who had recently arrived at
the port of entry. They explained that Mexican immigration agents kidnapped them for
a day in collusion with organized crime in another part of Mexico. Upon their release,
the immigration agents told them to specifically go to Nogales, that they would be safe
here, but they do not feel safe, knowing that Mexican authorities and organized crime
know who they are and their current location.

People waiting to seek asylum in Nogales, Mexico have also reported to the Kino Border
Initative attacks, threats, intimidation and other unsafe conditions that they are forced to
endure as they wait and attempt to exercise their right to seek asylum.

e On June 1, 2023, two Haitian couples traveling with an 11-month-old infant told a Human
Rights First researcher about extortion and dangers they had experienced in Mexico,
including difficulties finding safe shelter and an attempted kidnapping they had
experienced the day prior as they approached the DeConcini Port of Entry. The father of
the baby shared: “We were walking toward here. A truck with three men stopped and
they got out and started coming toward us. ‘RUN!’ | shouted to my wife and baby.
We managed to escape.”

e In mid-May 2023, multiple people reported to Kino Border Initiative staff that a group of
men had recently arrived at the port of entry and beat up a teenager who was waiting at
the port of entry to seek asylum. A woman with the group recorded the assault on the
teenager. The attackers threatened the migrants who had witnessed it, warning that
they needed to stay quiet about the attack or something even worse would happen to
them.

e In mid-May 2023, Kino Border Initiative staff and a Human Rights First researcher were
separately told of two young men who were waiting to seek asylum outside the Nogales
port of entry and left the line to shower. On their way back, they were apprehended by
an organized crime group and were searched, questioned, threatened, and robbed of
their belongings. Kino Border Initiative staff were informed that the young men reported
this to the Nogales municipal police, but the local police did not do anything.

Non-Mexicans presenting at the port of entry in Nogales without a CBP One appointment
who are subject to the asylum ban can overcome the ban and be considered for asylum if
they can prove that they (or a member of their immediate family who they are traveling with)
faced an “exceptionally compelling” circumstance, such as at the time of entry into the
United States, faced an acute medical emergency; an imminent and extreme threat to life or
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 36 of 74

safety, such as an imminent threat of rape, kidnapping, torture, or murder; or was a “victim of
a severe form of trafficking in persons,” as defined by U.S. regulations.

The narrow exceptions to the ban will not protect many refugees and will often be
impossible to prove. For instance, many asylum seekers in Mexico suffer horrific violence at
the hands of Mexican government agents and cartels, with many targeted precisely because
they are migrants or seeking asylum in the United States. Human Rights First has tracked
over 13,000 reports of murders, kidnappings, rapes, and other violent attacks against
migrants blocked in or expelled to Mexico due to Title 42 since President Biden took
office. Amid this unremitting violence, asylum seekers in Mexican border regions so often
face a serious risk to their safety that it is absurd to require an asylum seeker to establish an
“imminent and extreme” threat to life or safety, and it is unclear how they could even prove
to an adjudicator that they would have been kidnapped, raped, murdered, or otherwise
harmed had they remained in danger for longer.

This lack of certainty about what may be found to qualify as an “exceptionally compelling”
circumstance that would overcome the ban results in asylum seekers having to make a risky
calculus over whether to wait in situations of life-threatening harm struggling to obtain a
CBP One appointment or seek safety by presenting at the port to seek asylum and
potentially risk being barred from asylum. As is, people facing an urgent medical or
protection situation including threats to their life or safety such as risk of sexual assault,
kidnapping, torture or murder, have been left by U.S. officials to wait in Nogales, Mexico for
two-to-three weeks already due to minimal processing of asylum seekers without CBP One
appointments.

DHS and CBP are deprioritizing cases without appointments and lack government-led and
publicly accessible procedures and mechanisms for the timely identification and processing
of urgent medical and protection cases; instead, DHS and CBP officers count on local NGOs
to bring these cases to their attention. At present, access to seek asylum at the port for
those without appointments functions with minimal daily processing of those in this line.
DHS and CBP have not implemented any procedures at the Nogales port of entry to ensure
that CBP officers can independently identify and quickly process individuals with urgent
medical and protection cases - even those that may fall within the asylum ban’s “compelling
circumstances” unduly narrow exceptions are left without recourse.

People forced to wait indefinitely due to U.S. limits on asylum at ports of entry, including
many single mothers, face the threat of rape, sexual abuse, kidnapping, disappearance, and
trafficking. The risk of imminent harm is considerable for many, including many single
mothers with babies and young children who spoke with a Human Rights First researcher
on May 22, 2023 and shared that they had been waiting in line at the port of entry and
sleeping outside without even a tent for protection going on eight nights at the time. They
uniformly expressed their despair over their sense of vulnerability and insecurity, particularly
at night as they slept on the floor against walls and crouched in corners along the public
thoroughfare without any protection. They chose to remain there as they were in need of
asylum protection and had been waiting for months for a CBP One appointment to no avail.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 37 of 74

e Another Mexican single mother echoed these concerns for the safety of her children:
“You can't sleep peacefully because we're not safe. There has been a robbery of a
cell phone and someone's bag. I’m afraid that if | sleep, many things can happen to
my kids - intimate things.”

Outside the DeConcini Port of Entry, blankets and
cardboard where people slept as they waited to seek asylum.

People Suffer as they Wait in Dismal Conditions, Particularly Families with Children

During the first seven days that Mexican families were forced to wait at the port of entry ina
line that barely budged due to U.S. limits on asylum processing, they had no access to public
bathrooms and were required to pay 10 pesos per visit to use a nearby bathroom. This
expense stressed the few resources families had for food, water, or internet. A week into
waiting, local authorities opened access to a public bathroom that has no running water. For
the first two weeks most had no access to a shower. During the week of May 29, 2023 a
local nonprofit brought a mobile shower but some waiting in line shared on June 1, 2023 that
they were unable to access it as it was locked. Since May 17th, Kino Border Initiative staff
and other volunteers have been providing water and two meals a day for those waiting in
line.

Families initially reported children were experiencing dehydration and falling ill, with
a4 symptoms such as vomiting and high fever, and shared that several children were taken to
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 38 of 74

local medical clinics to receive treatment. Parents expressed stress over the potential need
to seek emergency care and abandon their place in line - the most reliable path to seeking
life-saving asylum protection - which might force them to continue to risk months of harm
while struggling to secure a CBP One appointment.

At the DeConcini Port of Entry, a child
Waiting to seek asylum plays in blankets
that asylum seekers who slept in line left behind.

In mid-May 2023, a minor child suffered appendicitis while waiting in line and required
emergency surgery. He was discharged from the local hospital and is unable to return to the
line as his wound requires that he have access to clean water and a hygienic environment to
prevent infection and aid in his recovery. His mother is caring for him while his brother
informed a Human Rights First researcher he was obliged to remain alone and hold the
family's place in a line that had hardly advanced for nearly two weeks.

Mexican authorities create list of Mexicans and others waiting to seek asylum in the U.S.

People seeking asylum should be allowed to do so in accordance with U.S. law, instead of
being left to wait for days and weeks on end. The limiting of U.S. asylum processing at ports
of entry, which was a policy implemented by the Trump administration (known as
“metering”) and was found to be unlawful, led to years’ long backlogs and long lines in
Mexico and, as a result, the development of a barrage of deficient “wait-lists” in Mexico. In
the wake of the U.S. failure to adequately resource ports of entry to properly process people

Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 39 of 74

seeking asylum, metering is once more a reality in Nogales, Mexico. At the DeConcini Port of
Entry, municipal authorities in Nogales, Mexico have created a list system for people waiting
in Nogales to seek U.S. asylum. Worryingly, Mexican municipal authorities have collected
names and are administering a waitlist of individuals and families that includes people
waiting to flee Mexico to seek asylum in the United States. In conversations with those
waiting in line on May 22, 2023, individuals indicated to a Human Rights First researcher
that it was unclear to them for what purpose their names had been taken down as the list
was first compiled, and some believed at the time that it was compiled by the Mexican
immigration authority Grupo Beta while others did not know who compiled it.

The Mexican municipal authority initiated the list of those waiting in line on or about May
25th and on May 27th began issuing a QR code that assigns a number on a waitlist to each
individual and family unit registered in line. Families waiting at the port of entry shared with
monitors that the system has allowed some families, such as single mothers with young
children and vulnerable individuals, to leave the line and seek temporary respite or spend
their nights at a local shelter or rented room. Other families reported that they lacked
resources to rent a room and informed monitors that shelters are at capacity and/or they
reached the shelter's limit of days they could stay, and thus the port was the only place they
could go despite the risks and conditions of sleeping outside on the concrete floor. Most
families traveling with more than one adult expressed that they sometimes chose to leave
one family member alone holding their place in line by day and overnight, while others
frequently return to monitor the line's movement and ensure their spot, having already
expressed distrust of the authorities and process.

During recent monitoring, there have been considerably fewer families and children
spending the day waiting in line along the public thoroughfare outside the port of entry. For
instance, on May 17, 2023, (the first week after the end of Title 42), Florence Project staff
counted at least 186 individuals waiting in line at the port of entry, including those both in
the covered hallway leading to the port of entry doors as well as those outside the turnstiles
lining the thoroughfare. On June 5th, there were only approximately 30 - 50 persons total
waiting at the port of entry, approximately 15 - 20 persons inside the hallway and near the
actual doors to the port of entry building, and another 20 - 30 persons outside the turnstile
in the thoroughfare area. Also on June 5th, Kino Border Initiative staff observed the
municipal authority issue QR codes to new individuals and families and instruct them to
leave the port of entry as they were last on the list and would not be called any time soon.

The same day, Kino Border Initiative staff spoke with a single mother and her child who
were waiting near the limit line outside the Nogales port of entry and were next in line. The
woman told Kino staff that, two days prior, she had received a phone call from the municipal
authority informing her that it was her turn and instructing her to return to the port, so she
and her child had spent the last two nights sleeping outdoors at the port waiting to be
processed.

Municipal authorities in Nogales, Mexico originally informed Kino in late May 2023 of their
intention to close the wait list after registering those individuals who were presently in line
and to disperse the line as soon as possible. However, as of Thursday, June 1, 2023, the

municipality has progressed to its third list, with 100 people on each list, and has indicated
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 40 of 74

that at this point they will not create a fourth list given how long they would have to wait to
be processed by CBP (likely months in the future already). Instead, it is likely that the
municipal authority will only add additional people to the third list as those with a QR code
are processed.

While this system has for the past week permitted some to temporarily leave the line, its
broader implications are troubling. U.S. law requires processing of all persons seeking
asylum, regardless of manner of entry. List-keeping at ports of entry in any form raises
concerns about illegal metering, and Mexicans in particular - who are not even subject to
the asylum ban - are trapped in their country of persecution, exposed to additional risk of
harm, which raises additional legality concerns.

It is also alarming that the Mexican municipal authority is requiring those asylum seekers
queuing to access the DeConcini Port of Entry, including Mexican citizens, to submit their
names given that all of the Mexican families a Human Rights First's researcher spoke with
described fleeing situations of individualized threats of death by cartel members in situations
where there was an egregious lack of state protection. Extensive reporting on Mexico
including by the U.S. Department of State corroborates situations of persecution and
violence inflicted by non-state actors, Mexican authorities, and/or both in collusion.

At present, the waitlist is being managed by one Mexican municipal agency without
transparency or a mechanism for complaints, monitoring, or oversight of the list. Before the
implementation of Title 42 in March 2020, the municipal government controlled a similar
waitlist and there were multiple allegations of corruption with no accountability or oversight
mechanisms to address concerns. Given similar actions in the past, local groups remain
concerned about rights abuses in the administration of the list, possible dispersion of the
line, and possible steps to dissuade people from seeking asylum at the port of entry - as well
as concerns about whether cartels or complicit Mexican officials will have access to the
names on the lists.

In interactions with asylum seekers and Kino Border Initiative staff, Mexican immigration
officers and municipal authorities have misstated information on U.S. immigration laws and
current policies, at times restricting access to the port of entry and contributing to
misinformation among people waiting to seek asylum.

e Kino Border Initiative staff spoke with a Mexican man who first arrived in Nogales in
February 2023 in search of asylum. He approached the port of entry on May 24, 2023
and was added to the waitlist and issued the number 88. On May 27" at around noon,
the Nogales municipal authority arrived and began issuing QR codes. He was asked for
his name and assigned number. He was also inappropriately asked by the municipal
agency whether he had been deported to Mexico previously, to which he answered in
the affirmative, but was not provided an opportunity to explain that it was an expulsion
under Title 42 (which does not carry the same immigration consequence as an order of
removal under U.S. law). He was then told “you no longer qualify for asylum” and
that U.S. authorities would not allow him to enter and would detain him, so he had
to leave the line. He tried to protest and explain that this wasn’t a decision for the
Mexican municipal agency to make but rather for the U.S. government, but he was
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 41 of 74

asked to leave the line and to give his place “to someone who actually needed it.” He
was not allowed to speak and was not issued a QR code like others in line were. This
man was able to access the port on June 4th thanks to the fellow asylum seekers in line
immediately before and after him who honored his place, despite the municipal
authority's unlawful efforts to prevent him from seeking asylum.

e On May 31, 2023, Kino Border Initiative staff sooke with a Cuban man who shared that
he obtained a CBP One appointment and was traveling by bus to the U.S. border to seek
asylum when the bus was stopped at an immigration checkpoint. A Mexican
immigration officer questioned him and he provided a screenshot of his CBP One
appointment. The officer did not accept it and required that he open the app to show
him the appointment. The man had no internet data at the time and was unable to
access the application so the immigration officer forced him to miss his bus. Upon
resolving the issue, he took another bus to Hermosillo, Sonora and then to Nogales,
Sonora, arriving at the port the day of his appointment but two hours late. At the
entrance to the port, the Mexican municipal authority informed him that as he had
missed his appointment time, he would need to start over in attempting to obtain
another one through the app or he could be added to the municipality-administered
waitlist for those seeking to enter without a CBP One appointment. The man reached
out to the Kino Border Initiative who informed him he could approach CBP directly at
the limit line and not accept what the Mexican municipal authority wrongly informed
him. The man approached CBP alone, explained his situation, and was processed with
the next scheduled cohort.

Those waiting to seek asylum include refugees unable to use other pathways

Over the past month, nearly 80 percent of new arrivals to the Kino Border Initiative’s Migrant
Aid Center reported leaving their homes due to violence or persecution. Asylum seekers
fleeing persecution in Cuba, Haiti, Nicaragua, and Venezuela have informed Kino Border
Initiative staff that they were unable to avail themselves of the Cuba, Honduras, Nicaragua,
and Venezuela (CHNV) parole “pathways” specific to their countries of origin that would
except them from the asylum ban’s application. The CHNV parole program requires long
wait times (many months long, as of the time of publication), each family member to have a
valid passport from their country of origin, a U.S. sponsor who must initiate the application
and have legal status within the United States, and other prerequisites that create barriers
and would force those fleeing persecution to continue waiting in danger. Some of these new
arrivals also shared that they had only learned of the parole process once in Mexico and
were now disqualified due to their manner of entry into Panama and/or Mexico.

e Awoman waiting in Nogales to seek asylum fled Venezuela because her father had a
business selling vegetables and “collectives” that work with the national government
began to extort him. He didn’t have enough money to pay the extortion fees and they
began to threaten to kill him. As people opposed to the current Venezuelan
government, she and her family could not go to the police.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 42 of 74

e Awoman waiting in Nogales to seek asylum fled Venezuela because the national
police force seized her house without any police order. This happened on two
separate occasions with two separate homes. The authorities beat her father and
threatened to kill him if he or his family said anything.

The asylum ban disproportionately impacts vulnerable populations, such as Indigenous
people who face Indigenous language exclusion in the CBP One application and at the
credible/reasonable fear interview stage. The Kino Border Initiative consistently receives
new arrivals who are Indigenous community members and Indigenous language speakers,
including:

e AnlIndigenous K’iche woman from Guatemala informed Kino Border Initiative staff that
she faces persecution for being part of the Indigenous community and criminal groups
have killed many people from her community.

e An Indigenous Triqui grandmother, daughter, niece and grandson fled southern Mexico
when armed groups forced them out of their homes, displacing them. The Triqui
people organized marches and asked the government for protection in Mexico City but
Mexican authorities ignored them.

The asylum ban restricts access to asylum for survivors of LGBTQI+ persecution and
gender-based violence who often continue to be exposed to high risk of harm during transit
and while waiting in Mexico:

e AColombian LGBTQI+ woman fled Colombia following displacement by an armed
group and persecution by the Colombian police on account of her sexual orientation.
She and her same-sex partner were sexually assaulted by Colombian police and she
was unable to obtain state protection despite attempting to report the attack. While in
Mexico, she survived sexual abuse by Mexican state police and an attempted
kidnapping by a cartel group. She is terrified to remain in Mexico and cannot return to
Colombia so she has been waiting for over two weeks at the DeConcini Port of Entry to
seek asylum without a CBP One appointment and will be subject to the asylum ban
once processed.

Women separated from family by U.S. Border Patrol struggle to access asylum

Human Rights First and other organizations have learned of many incidents of family
separation conducted by U.S. Border Patrol (a subagency of U.S. Customs and Border
Protection) under the Biden administration. These reports include recent incidents in which
Border Patrol agents transported separated family members hundreds of miles away to
expel them and refused to explain what was happening to them or where their family
members were. In late May 2023, a Human Rights First researcher spoke with four
4

Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 43 of 74

Venezuelan women who had been waiting outside the Nogales port of entry to seek asylum
for many days, and reported that they were each separated by Border Patrol from their
respective family groups and/or others they were traveling with after crossing into the
United States near Matamoros, Tamaulipas, Mexico during the final days of Title 42. These
four Venezuelan women were expelled to Nogales, Sonora, Mexico - 1200 miles away - ina
group that included an estimated 200 women. The women remain stranded in Nogales, still
unable to seek asylum, now on account of the Biden administration asylum ban.

e Awoman seeking asylum from Venezuela, Xéchitl*, was separated by Border Patrol
from her husband, subsequently expelled under Title 42 alone 1200 miles away to
Nogales, and struggles to seek asylum in wake of Biden asylum ban:

“[Border Patrol] asked if there were any married couples. We told them we were
married and had our legal marriage certificate. We were then separated. | spent four
very cold nights in a soft-sided tent without any information on my husband. | was
then handcuffed at the wrists, ankles, waist and transported by plane with 200 other
women, still not told what was happening or where my husband was. | was then
returned through Nogales, Mexico alone with these other women. Only once in
Nogales did | hear from my husband. He had been returned back to Matamoros.

It was horrible, The [Border Patrol] officers mocked us. There were many women
crying and they [the officers] would laugh. When they boarded us on the plane, we
weren't even told where we were going. They crossed us back to Nogales without
giving us any information, not even the name or location of a shelter.”

Shortly after, this woman's husband tried again to enter the United States from Matamoros,
Tamaulipas, Mexico to seek asylum. This time, X6chitl reports, he was paroled and issued a
court date, at which point he will have a chance to plead his case for protection; what he
may or may not realize is that, if he entered on or after May 12th, the Biden administration's
asylum ban will most likely apply to him when he goes before an immigration judge and he
will be likely ineligible for asylum due to his manner of entry. His wife, X6chitl, meanwhile
remains alone in Nogales. She was waiting in line outside the port for over two weeks. She
was unaware of the potential consequences of the Biden administration asylum ban on
people who enter at the port without an appointment. Even though she has been waiting at
a U.S. port of entry, the ban will likely block her from asylum and she may be deported to
Mexico or Venezuela with a five-year ban on entry to the United States.

e Border Patrol separated a Venezuelan woman, Veronica’, from her sister and her
partner. Veronica was then expelled under Title 42 alone to Nogales - 1200 miles
away. In early May 2023, a Venezuelan woman crossed into the United States from
Matamoros, Tamaulipas, Mexico together with her adult sister, two female friends, her
partner, and her partner’s four brothers. She spent four nights in a soft-sided CBP facility
where she was not permitted to shower and was then separated from her sister, partner
and other female friends and expelled under Title 42 alone on May 7th through Nogales,
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 44 of 74

Mexico, 1200 miles away. She has been trying to obtain a CBP One appointment to seek
asylum for two months, including the last month she has been in Nogales with two
other women, Ulia and Teofila, who were also expelled alone. She shared:

“We have been trying to get a [CBP One] appointment. We don't even have money
for food. We decided to turn ourselves in at the port as a last resort. We have
nowhere to sleep. Shelters only let you stay one week. This bench and floor is where
we're sleeping tonight.”

She was unaware of the potential consequences of the Biden administration asylum
ban on people who enter at the port without an appointment. Even though she has been
waiting at a U.S. port of entry, the ban will likely block her from asylum and she may be
deported to Mexico or Venezuela with a five-year ban on entry to the United States.

Venezuelan women separated from family
by U.S. Border Patrol and expelled to
Nogales, Mexico wait to seek asylum.

e A Venezuelan woman, Ulia*, was separated from her partner and his family, expelled
alone 1200 miles away. Ulia arrived in Mexico in October 2022 together with her
partner and his extended family; they were all blocked from seeking asylum under Title
42. Ulia, her partner, and their extended family had been attempting to request a CBP
One appointment since mid-February 2023. After three months of daily struggles with
the CBP One application, Ulia and her partner crossed into the United States in early
May 2023 from Matamoros, Mexico and were detained by Border Patrol agents. Ulia
was held in a soft-sided facility for three days while her partner was held for seven days
and then paroled and issued a notice to appear in immigration court, where he will be
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 45 of 74

able to plead his asylum claim; what Ulia’s partner may or may not realize is that, if he
was registered as entering on or after May 12th, the Biden administration’s asylum ban
will most likely apply to him when he goes before an immigration judge and he will be
ineligible for asylum due to his manner of entry. However, Ulia was separated from him
and expelled alone through Nogales, Mexico, over 1,200 miles away on May 7, 2023. Ulia
detailed how her partner's extended family with whom she was traveling were all
separated:

The entire family, with the exception of her and her partner, all crossed into the United
States to seek asylum through Ciudad Juarez, Chihuahua, Mexico in October 2022, yet
there were arbitrary and disparate outcomes which are divorced from refugee law:

o AVenezuelan couple (Ulia’s partner's sister) with their three-year-old daughter
were expelled under Title 42 through Matamoros, Mexico. They repeatedly tried to
cross and were expelled, but incredibly obtained a CBP One appointment on the
very first day the application launched and were paroled in.

o A Venezuelan single mother and her two adolescent children (relatives of Ulia's
partner) were expelled under Title 42 through Nogales, Sonora and then sent further
south by Mexican immigration authorities to Hermosillo, Sonora, Mexico. They
returned to Cuidad Juarez, Chihuahua, Mexico (near El Paso, Texas) and were
paroled during their second attempt to enter the United States.

o AVenezuelan couple who are Ulia's friends and a Venezuelan single adult friend
were expelled under Title 42 through Cuidad Juarez, Chihuahua, Mexico;

o An Ecuadorian and Venezuelan couple, Ecuadorian mother-in-law and Ecuadorian
three-year-old child (relatives of Ulia's partne) were paroled the same day they
entered in October 2022 through El Paso.

e Teofila*, a Venezuelan woman, was separated from her traveling companions who
were also survivors of sexual violence, expelled to Nogales alone - 1200 miles away.
During her journey to Mexico, Teofila was kidnapped and sexually assaulted while
traveling with a group of 27 people on foot through the mountains of Guatemala. Two
other women with her were also sexually assaulted. Part of her group made it to
Matamoros, Tamaulipas, Mexico where seven of the men in the group were kidnapped
from their tents and held hostage for one month. Teofila finally made it to Matamoros
and crossed into the United States in early May 2023 to seek life-saving asylum
protection together with the other two survivors of sexual violence. The other two
women were paroled in to the U.S. under Title 42 while Teofila was expelled alone about
1,200 miles away to Nogales, Mexico.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 46 of 74

Teofila remains alone in Nogales where she has been the last month. She recently
arrived to the DeConcini Port of Entry to attempt to seek asylum. She was unaware of
the potential consequences of the Biden administration asylum ban on people who
enter at the port without an appointment. Even though she has been waiting at a U.S.
port of entry, the ban will likely still render her ineligible for asylum because she failed to
obtain an appointment through the CBP One application which functions similar to that
of a lottery, failed to obtain permission to enter the United States through the CHNV
parole program she is ineligible for based on her date of entry to Mexico and lack of a
Venezuelan passport, and failed to seek asylum protection in Guatemala and Mexico -
despite having survived sexual assault and other forms of harm while traveling those
countries. If or when Teofila is determined to be ineligible for asylum, she is likely to be
deported to Mexico or Venezuela with a five-year ban on re-entry to the United States.

Similarly, Human Rights First researchers previously identified other cases of family
separation by Border Patrol agents during the last days of Title 42. In these cases, families
who had crossed into the United States through Matamoros were separated by Border
Patrol from family members who were expelled under Title 42 or whose whereabouts were
unknown. Among these were seven pregnant Haitian women, a married Venezuelan
couple, and a twenty-one-year-old young adult who had been separated from her parents,
among others.

Recommendations

Uphold refugee law and right to seek asylum: The Biden administration, as well as DHS
and DOJ, must uphold U.S. and international refugee law and immediately rescind their
asylum ban. People seeking asylum must not be penalized and/or barred if they arrive at an
official port of entry without an appointment or due to their irregular entry or transit routes to
the United States, in accordance with U.S. and international law. People seeking asylum
must not be forced to wait and wait, or be subjected to improper metering, at U.S. ports of
entry - and Mexican nationals should not be left to “wait,” trapped at risk in their country of
feared persecution.

The CBP One smartphone application cannot be used to ban, block, delay or limit others
from seeking asylum: The Biden administration must ensure equitable access to seek
asylum for all individuals without discrimination, including for those without the means to
purchase a smartphone, obtain access to electricity and internet while stranded in Mexico,
as well as those who are illiterate, or who speak languages other than the few employed by
CBP One, including Indigenous languages. While the Biden administration asylum ban is in
effect, the CBP One application cannot be essentially the only path through which non-
Mexicans can seek asylum at the U.S. southwest border without incurring the penalties of
the asylum ban.

Maximize rather than limit asylum processing capacity at ports of entry, including for
Mexican and other asylum seekers without CBP One appointments: DHS must maximize
asylum processing capacity at ports of entry, including for those without CBP One
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 47 of 74

appointments and stop deprioritizing people without appointments to seek asylum at ports
of entry. While government officials report surging resources to the U.S./Mexico border, it is
insufficient. The U.S. government's failure to increase and sustain critical resources -
including personnel, physical infrastructure, internet and computers, and other resources
required to significantly increase CBP’s Office of Field Operations’ processing of asylum
seekers at all ports of entry - is resulting in irreparable, life-threatening harm to people
seeking asylum in need of protection.

Given the overwhelming evidence of kidnappings, trafficking, sexual assault,
disappearances, robbery, and extortion by organized criminal groups with the complicity
and participation of Mexican authorities, the only effective approach to addressing the
number of asylum seekers at the U.S.-Mexico border, including Nogales, is for U.S. ports of
entry to be the safest, most efficient, and fair way to seek asylum. To achieve this, the U.S.
government must make a concerted and intentional effort to redistribute the resources it
currently appropriates for deterrence-based practices and policies and instead
reallocate those resources towards ports of entry. DHS must ensure timely processing of
all asylum seekers in accordance with U.S. law and core principles of international refugee
law binding on the United States. Furthermore, resources and specialized teams within DHS
entities must be equipped to identify and immediately process those with urgent medical
and protection situations without applying a narrow interpretation with a heightened
standard of proof and scrutiny as the asylum ban does. Mexican government wait lists are
not the answer to the U.S. government's failure to properly resource its border ports of entry;
CBP needs to significantly increase asylum processing, including for people without
appointments. Mexican asylum seekers must not be left waiting to seek U.S. asylum in their
country of feared persecution.

Stop separating families in DHS agencies’ custody and processing: The right to family
unity requires that family members are not separated. DHS must take steps to ensure
families are processed together including in the same processing “pathway,” are not
separated and deported or otherwise sent back through different ports of entry, and are
provided timely information on the status and whereabouts of other family members.

Increase government and other aid: Increase government and other aid to support
humanitarian efforts in Nogales, Mexico (and other areas in Mexico) where people are
waiting to seek asylum and to support humanitarian reception in the United States. DHS
must shift funds away from over-funded detention, enforcement and surveillance accounts
and surge funds toward reception services.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 48 of 74

Mission Statement

Human Rights First works to create a just world in which every person’s intrinsic human
rights are respected and protected, to build societies that value and invest in all their people.
To reach that goal demands assisting victims of injustice, bringing perpetrators of abuse to
justice, and building institutions that ensure universal rights.

Human Rights First is a nonprofit, nonpartisan international human rights organization
based in Los Angeles, New York, and Washington D.C.

This report is available online at humanrightsfirst.org

Acknowledgements

This report was researched by Christina Asencio of Human Rights First, Chelsea Sachau
of The Florence Immigrant and Refugee Rights Project, and Pedro de Velasco of the Kino
Border Initiative. The report was drafted by Christina Asencio of Human Rights First with
edits contributed by Eleanor Acer and Rebecca Gendelman of Human Rights First,
Chelsea Sachau and Laura St. John of The Florence Immigrant and Refugee Rights
Project, and Pedro de Velasco of the Kino Border Initiative. Human Rights First is grateful
to the donors and foundations who provide invaluable support for the organization's
research on access to asylum and representation of asylum seekers. We honor and thank
the numerous asylum seekers who bravely shared their stories in hopes of bettering the
system for all those who seek protection and refuge in the United States.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 49 of 74

Exhibit &
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 50 of 74

The San Diego Union-Tribune SUBSCRIBE LOGIN Q

IMMIGRATION

U.S. border officials have been turning asylum seekers
away at ports of entry despite new rules

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A family of 10 from Michoacan, Mexico, tells U.S. officials at the San Ysidro PedEast border crossing that they want to
request asylum on May 18, 2023. Customs and Border Protection officials told them the only way was through a smartphone
app. (Ana Ramirez/The San Diego Union-Tribune)

Asylum seekers who come to ports of entry are supposed to be
screened under the new, restrictive asylum rule, according to the
Department of Homeland Security

BY KATE MORRISSEY
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 51 of 74
MAY 20, 2023 5 AM PT

Officials at the San Ysidro Port of Entry have been refusing to accept asylum seekers
who don’t have appointments obtained through a smartphone app even though new

government rules indicate they should be taken in and screened.

The Union-Tribune witnessed U.S. officials turning away asylum seekers at the
PedEast border crossing on Thursday after attorneys had reported similar incidents

earlier in the week.

That included a family from the Mexican state of Michoacan who walked up to the
U.S.-Mexico border line on Thursday afternoon and told U.S. border officials

standing at the gate that they were seeking asylum.

The officials asked them to step aside and then told them they couldn’t request

protection there.

“You have to use CBP One,” an official told them in Spanish, referring to a
smartphone application that Customs and Border Protection has used since January

to schedule appointments with asylum seekers to come to the port of entry.

The official’s instructions contradict what a high-level official from the Department of
Homeland Security said earlier in the week are the new protocols with the recent end
of Title 42 — which blocked asylum seekers from entering ports of entry during the

pandemic.

“We are not turning individuals away at our ports of entry,” said Blas Nunez-Neto,
assistant secretary for border and immigration policy, when asked by the Union-

Tribune about asylum seekers being turned back during a press call on Wednesday.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 52 of 74
He said people who requested asylum by approaching ports of entry without
appointments would be subject to the new, restrictive asylum rule that limits
eligibility if they crossed through another country between their country and the
United States. That rule could make their screenings for protection more difficult to

pass, but it does not take away their right to be screened.

Nufez-Neto said that CBP is prioritizing processing of people who use the app, which
could mean that asylum seekers have to wait long periods of time in line at the port if

they don’t have appointments.

But that does not appear to be what has been happening in San Diego. CBP officers at
the San Ysidro Port of Entry turned away the family from Michoacan and told them

the only method for requesting protection is to use the smartphone app.

None of the asylum seekers in this article are being fully identified because of

concerns that they are still in danger.

A federal judge in San Diego ruled in 2021 that, in the absence of Title 42, it is illegal
for CBP to turn away asylum seekers at ports of entry. Now that the pandemic-era
border policy is no longer in effect, it is not clear under what authority they had been

doing so.

In an emailed statement Saturday, CBP emphasized that it is not turning away

asylum seekers and is processing them at ports of entry.

“CBP will process those without appointments as quickly as possible,” the statement
read. “CBP will make processing determinations upon the noncitizen’s arrival at a
port of entry, on a case-by-case-basis, and outcomes may vary depending on the

specific circumstances of each case.”

A missing safety valve
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 53 of 74

A mother and two children who are among a family of 10 walk through Tijuana to seek asylum at the PedEast crossing of
the San Ysidro Port of Entry. (Ana Ramirez/The San Diego Union-Tribune)

Though the new rules will likely mean that most asylum seekers who cross without
appointments are denied asylum in the early screening stages, they do allow for

people to request exemptions based on certain kinds of extenuating circumstances.

If CBP officers refuse to process migrants who approach the port of entry, it is not

clear how those especially vulnerable cases might be identified in the first place.

The new rule says that anyone who crosses a third country between leaving their
country and getting to the United States will be presumed ineligible for asylum unless
they first apply for and are denied asylum in that third country. People who use the

smartphone app CBP One are exempted from this rule.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 54 of 74
Mexicans who are seeking asylum, such as the family from Michoacan, notably do not
have to cross a third country in order to reach the United States, so the rule doesn’t

apply to them.

“Mexicans are not subject to the asylum ban,” said Priscilla Orta, supervising attorney
with Project Corazon at Lawyers for Good Government, using advocates’ term for the

new rule. “They have no reason to have an appointment.”

The rule also says asylum seekers can come to ports of entry without appointments if
they can’t use the app because of language barriers, illiteracy, significant technical
failure or because of “exceptionally compelling circumstances,” the Department of

Homeland Security has said.

But, Orta said, it’s not clear how an asylum seeker would prove such circumstances.
And the consequences if they are found not to have exceptionally compelling

circumstances could be dire if they are not from Mexico.

Orta said under Title 42, she had a “safety valve” — in extreme cases of danger, she
could contact CBP directly and ask for the client to be scheduled for processing. Now,
she is representing clients who she says are being raped nightly while they wait for

appointments in the CBP One app.

“The safety valve is gone,” Orta said. “Nothing is more devastating than knowing my
clients wait for Friday and then Monday until this administration decides they are

worth protecting.”
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 55 of 74
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An officer with U.S. Customs and Border Protection tells families that they need to request asylum using the CBP One
application, that they cannot make the request at the port of entry without an appointment. (Ana Ramirez/The San
Diego Union-Tribune)

Practices along the border appear to vary under the new rule.

Orta said that at the two ports of entry where she works in Texas — Brownsville and
Hidalgo — she hasn’t personally witnessed turn-backs of asylum seekers. But a
delegation of human rights observers organized by Haitian Bridge Alliance published
a report Thursday documenting cases of asylum seekers turned away there after the

end of Title 42.

Chelsea Sachau, managing attorney of the Border Action Team with Florence
Immigrant & Refugee Rights Project in Arizona, said at the Nogales Port of Entry,
there is a line of about 200 asylum seekers, mostly families, who have been waiting
for days to be processed. She said those waiting told her roughly 10 to 25 people are

being processed over night each night from the line.
But at the San Ysidro Port of Entry, there hasn’t even been a line. CBP officers have

been telling asylum seekers the app is the only option.

There doesn’t seem to be a way for asylum seekers to make a claim of exceptional

circumstances or for Mexicans to safely exit the country they are trying to flee.
Attorneys have reported multiple occasions since the end of Title 42 when they and

the asylum seekers they were representing were turned away by San Diego CBP. That

sometimes included Mexican police pressuring them to leave the port area.

No asylum here

A family of 10 from Michoacan try to follow a Mexican immigration official’s directions to the PedEast border crossing.
(Ana Ramirez/The San Diego Union-Tribune)
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 57 of 74
For Mexicans being told to wait for appointments in the app, the stakes can be

especially high.

In the case of the family from Michoacan, where cartel violence has caused thousands
to migrate, the family had been targeted, they said. They’d had to flee where they'd

been staying in Tijuana as well, they said, which sent them to the border.

The father, mother, their five children, the father’s sister and her two children — 10 in
total — tried first to request asylum at the western pedestrian crossing, known as
PedWest.

In El Chaparral plaza, several people pointed them instead to the entrance of a
parking lot in front of the port where Mexican immigration officials gather asylum

seekers with appointments and take them to CBP.

When the family approached the guard house at the parking lot gate, an official told
them they needed to download CBP One, that it was the only way to request asylum.

Hoping to speak directly to U.S. officials, the family again approached the entrance to
PedWest. A Mexican immigration official stopped them before they even reached the

ramp to the crossing and told them they couldn’t enter.

Mexico’s immigration agency did not respond to a request for comment.

The family told the official they wanted to speak with officers from the United States.
He told them they would have to go to the other pedestrian entrance at PedEast to do

that.

They followed his instructions, pausing to ask directions of a member of the Mexican

military and again of taxi drivers as they got close to the entrance.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 58 of 74
“There is no asylum here,” one taxi driver told them in Spanish. “Don’t waste your

time.”

Families from the Mexican states of Michoacan and Guerrero try to request asylum at the PedEast crossing at the San
Ysidro Port of Entry. (Ana Ramirez/The San Diego Union-Tribune)

When they finally made it to the border line, the conversation with U.S. officials was
short. They would not be allowed to request protection there either. They had to wait
for an appointment through the app.

Soon after the family reached the border line, two other families followed — a woman
and her children from Guerrero, a state in Mexico next to Michoacan that is also
experiencing high levels of cartel violence, and a woman and her child from El
Salvador, where political repression and gang violence have both caused people to

flee.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 59 of 74
The woman from Guerrero was adamant about wanting to request protection at a
port of entry rather than climbing over the border wall. She didn’t want to risk her

children’s lives, she said.

“It’s not fair. We’re doing things right,” the woman said in Spanish. “I never thought

I’d be in this situation, but things change. What I’m living is not a lie. I have proof.”

She showed the Union-Tribune photos of her husband’s beaten body before he was
killed.

“T don’t want that life for my children,” she said.

After the family from Michoacan walked away, she and the woman from El Salvador

approached the U.S. officials and were also quickly sent back.

A lottery for life
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 60 of 74

AIO ares sams

A young boy, who is part of a family of 10 from Michoacan, walks on a bridge over the vehicle lanes at the San Ysidro
Port of Entry. His family tried to request asylum at both pedestrian entrances of the port but were turned away. (Ana
Ramirez/The San Diego Union-Tribune)

The families will have to try their luck with the CBP One app, where more than

62,000 users are already vying for appointments, according to CBP.

As Title 42 ended, CBP One went through a major update, converting it from
something like Ticketmaster, where people tap furiously in an attempt to get slots
every morning, to something more like a lottery, where appointments are doled out

daily based on random chance.

Every day, some asylum seekers receive appointments through notifications in the

app and have 23 hours to accept the dates given.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 61 of 74
According to Nufiez-Neto, the DHS official, the algorithm that selects who will be
given appointments each day weighs how long the asylum seekers have had accounts

in the app. But the selection is still based on chance, he emphasized.

“Tt is arandom drawing, and that is intended to be equitable,” Nunez-Neto said.

Since it began offering appointments to asylum seekers, the CBP One app has been
criticized by migrants, attorneys and human rights observers for its frequent errors

and its exacerbation of inequities in access to asylum screenings.

“People who are terrified to return to their home countries who are seeking asylum,
they want to do this the right way so badly that they wait for an app that does not
work,” Orta said. “It’s a lottery for their life.”

Nunez-Neto said the recent update was meant to address many of these concerns.

Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 62 of 74

A family of 10 from Michoacan heads to the PedEast crossing to try to request asylum. (Ana Ramirez/The San Diego
Union-Tribune)

At least some issues that have long plagued the app are still affecting migrants, as was

apparent in the case of the family from Michoacan.

Many asylum seekers lose their phones or are robbed of their phones on their

journeys to the border. Others never had money for smartphones to begin with.

After being told that he had to use a smartphone app, the father of the family from
Michoacan pulled a cellphone from his pocket to show the Union-Tribune. It was an
outdated Nokia, a style that might have been popular in the early 2000s. He wouldn’t

be able to download any smartphone app on that device.

The father’s sister is the only one with a smartphone, meaning that the families can’t
break into two groups to try to get an appointment. They will have to find one for all

10 — which can be especially difficult.

The family found temporary refuge with a friend in the city, but because of their size,

they can’t stay long there. They don’t know where they will go next.
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 63 of 74

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Limits on Access to Asylum After Title 42: One
Month of Monitoring U.S.-Mexico Border Ports
of Entry
June 2023

On May 11, 2023, the U.S. public health order known as “Title 42” was lifted, marking the end of a policy that
was used for three years to expel people seeking refuge at the U.S.-Mexico border without access to the U.S.
asylum process. The U.S. government returned to border processing under Title 8 – the section of the U.S. code
that lays out U.S. immigration law, including the legal right to apply for asylum when arriving in the United States
or after crossing into the country. However, at the same time, a new regulation1 took effect that renders most
asylum seekers ineligible for asylum if they transited through a third country en route to the United States unless
they use the (U.S. Customs and Border Protection) CBP One smartphone app to schedule one of a limited number
of appointments at a border port of entry, had sought and been denied asylum in a transit country, or meet
other narrow exceptions.
A working group of U.S., Mexican, and international NGOs that provide humanitarian and legal support to asylum
seekers and migrants in the border region conducted targeted in-person monitoring at ports of entry to
understand the impact of these policy shifts on access to asylum. Between May 11 and June 12, 2023,
observations took place at six ports of entry in California (San Ysidro and Otay Mesa), Arizona (Dennis DeConcini),
and Texas (Bridge of the Americas, Paso Del Norte and Ysleta) that adjoin the Mexican cities of Tijuana, Nogales,
and Ciudad Juárez.2
The monitors’ key findings include:
x While a limited number of asylum requests by individuals and families without prescheduled appointments
were processed at most of the monitored U.S. ports of entry, practices by U.S. and Mexican authorities
restricted asylum seekers without CBP One appointments from physically reaching U.S. ports of entry to
make protection requests. Media reports and researchers have highlighted accessibility challenges with
the CBP One app that may exclude some of the most vulnerable asylum seekers, including Black migrants,
Indigenous people, and people lacking access to smartphones and strong Wi-Fi signals.3
x Limited processing or “metering” of asylum seekers without CBP One appointments resulted in lines,
waitlists, and informal encampments at or near the monitored ports of entry in Mexico, even as the

1 The U.N. Refugee Agency urged the U.S. government to reconsider the asylum ban regulation, concluding that it “would restrict the

fundamental human right to seek asylum for people” and “lead to cases of refoulement – the forced return of people to situations where
their lives and safety would be at risk – which is prohibited under international law.” UNHCR, “UNHCR urges United States to not
implement proposed barrier to asylum,” March 27, 2023, https://www.unhcr.org/us/news/unhcr-urges-united-states-not-implement-
proposed-barrier-asylum.
2 Data from observations was collected using a cloud-based tool designed collaboratively by the working group to document demographic

and humanitarian observations, practices by government officials, and rights violations at the observed ports. The group met three times
during the monitoring to discuss observations.
3 See, e.g., “The new US border wall is an app,” MIT Technology Review, June 16, 2023,
https://www.technologyreview.com/2023/06/16/1074039/border-wall-app/amp/; Kocher A. Glitches in the Digitization of Asylum: How
CBP One Turns Migrants’ Smartphones into Mobile Borders. Societies. 2023; 13(6):149. https://doi.org/10.3390/soc13060149.
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Limits on Access to Asylum After Title 42 – June 2023 2

number of CBP One appointments increased at the start of June 2023.4 Families and adults were observed
living in difficult humanitarian circumstances with unmet basic needs, exposed to potentially dangerous
conditions, and at risk of trafficking and exploitation.
x People waiting to request asylum at U.S. ports of entry lacked adequate and accurate information. Many
did not appear to understand the potential legal consequences of the recently implemented “asylum ban”
rule that renders most people seeking international protection without a CBP One appointment, even if at
a port of entry, ineligible for asylum.
The working group urges the U.S. government to: fully restore access to asylum; surge agency staff (not troops)
and other resources to ports of entry, as needed; and rescind the asylum ban that counterproductively punishes
asylum seekers who line up to request protection at official border crossing points merely because they have
not been able to preschedule one of the limited CBP One appointments. U.S. government reports have
repeatedly found that limiting asylum at ports of entry leads individuals, who would otherwise have sought, or
who tried to seek, protection at a port, to instead make dangerous, irregular border crossings. These and other
recommendations to establish a safe, humane, and orderly process at ports of entry are included at the end of
this document along with an Annex of additional observations made at the six monitored ports of entry.
Restrictions on Seeking Asylum Seen at All Monitored Ports of Entry
At all six locations, asylum seekers were not able to freely approach the port of entry to request asylum. These
“metering” practices resulted in lines and/or waitlists of asylum seekers at most observed ports of entry. At
some ports on some days visited by the monitors, individuals and families without CBP One appointments were
unable to seek asylum, while on other days ports were observed processing between 4 to 40 people without
appointments while hundreds were observed waiting in line or in nearby informal encampments. At the three
monitored ports in Ciudad Juárez asylum seekers self-organized informal waiting lists, while in Nogales and
Tijuana Mexican authorities administered waitlists. Asylum seekers without prescheduled appointments
reported waits outside of ports of entry of up to two weeks to be processed by CBP.
At the six monitored ports of entry, CBP officers were observed directly interacting with people attempting to
seek asylum, turning them away or instructing them to join lines on the Mexican side of the border and, on other
occasions, informing waiting asylum seekers on when and if they would be processed. In mid-May 2023, in the
initial days of monitoring after the Title 42 policy ended, CBP officers at Otay Mesa and Paso del Norte were
observed directly turning away asylum seekers without CBP One appointments, telling them they would not be
processed. A CBP officer on the Paso del Norte bridge told a group of asylum seekers without CBP One
appointments that asylum without a prearranged appointment “doesn’t exist anymore.” In early June 2023,
monitors heard a CBP officer at the gate to the Dennis DeConcini port of entry turn away a man who declared
himself to be seeking asylum, telling the man to “go back to the line” of asylum seekers without CBP One
appointments. CBP officers were also observed directly communicating with asylum seekers without
appointments waiting on the Mexican side of the border line in Nogales and Ciudad Juárez, informing those at
the head of the line of the number of people without appointments to be processed at any given point.
Mexican authorities (including police and migration officials) and private security guards prevented some asylum
seekers from approaching U.S. ports of entry either directly turning them away or by placing them on waitlists.
At the Pedestrian West entry to the San Ysidro port of entry, Mexican officials did not permit individuals without
CBP One appointments and corresponding identification documents to cross the pedestrian bridge leading to

4 @CBP, Twitter, June 2, 2023, https://twitter.com/CBP/status/1664617975494606855 (“Beginning yesterday, June 1, CBP is expanding

the number of [CBP One] appointments to 1,250 per day.”).
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Limits on Access to Asylum After Title 42 – June 2023 3

the U.S. port of entry. For instance, monitors observed Grupos Beta5 turn away an asylum seeker and her three
minor children because the CBP One app had generated appointments for the family on different dates, and
only one member of the family had a scheduled appointment that day. Monitors also observed a Tijuana police
officer at the Pedestrian West side of the San Ysidro port of entry tell a family without an appointment to leave
the area and stay at least one block south. A Tijuana police officer told one monitor that he communicates the
message that “the only legal way to enter the U.S. is through the [CBP One] application.” In June 2023, at the
Pedestrian East side of the San Ysidro port of entry, Mexican authorities ordered waiting asylum seekers to clear
the area stating that Mexican child protection officials would arrive, which asylum seekers understood to be a
threat to remove their children, if they did not comply. In Nogales, the municipal Bienestar Social (Social
Wellbeing) Agency established a system with QR codes to manage the line of waiting asylum seekers without
CBP One appointments, assigning codes to the first 100 people in line and allowing only about 20 people to
remain in line near the Dennis DeConcini port of entry. Local authorities in Nogales asserted to waiting asylum
seekers that asylum can only be sought through the QR code system.
Difficult Humanitarian Circumstances and Dangerous Conditions as People Await Asylum Access
Lines and informal encampments of waiting asylum seekers arose at or near observed ports of entry in Tijuana,
Nogales, and Ciudad Juárez, leaving vulnerable individuals and families in difficult humanitarian circumstances
and facing potentially dangerous conditions, such as health problems, adverse weather conditions, and security
risks. Yet, many asylum seekers expressed reluctance to relocate to more formal shelter facilities, where these
were available, for fear of losing their place in line or being detained by Mexican migration officials if they left
the port of entry area.
Many of these encampments lacked sufficient basic necessities (food, water, access to bathrooms and showers,
sanitary napkins) and waiting asylum seekers were sleeping on sidewalks/pavement on pieces of cardboard.
They were exposed to rain, high heat during the day, and low
temperatures at night. In Tijuana, Nogales, and Ciudad Juárez, In May 2023, a 31-year-old Haitian
sick children, pregnant people, and persons with disabilities were asylum seeker with hypertension and a
observed in the port of entry encampments. Even in cases with high-risk pregnancy, who indicated to
clear humanitarian concerns, based on monitors’ observations monitors that she had previously been
there does not appear to be a system to submit requests to CBP denied assistance at local hospitals in
for expedited consideration of asylum seekers with medical Tijuana, declined an offer by local
emergencies or other urgent humanitarian needs or security officials for a care referral for fear that
concerns. Refugee Health Alliance, an NGO that provides health she would lose her place in the informal
services to migrants in Mexico, reported that CBP officers asylum line at the San Ysidro port of
rejected requests for humanitarian parole of individuals in entry.
Tijuana for whom its staff had provided letters to document their
urgent medical needs.
Monitors noted that waiting asylum seekers were subject to security and other risks. People in the line in
Nogales, particularly women, reported feeling unsafe at night in an area where it was reported that actors
involved in drug and human trafficking often operate. Monitors also noted the presence of individuals who
appeared to be human traffickers near some Ciudad Juárez ports of entry. A 2022 needs assessment conducted
by the IRC along Mexico’s northern border found that half of the people surveyed reported they had directly
experienced a safety issue or crime in Mexico. They identified several risks for their families, including sexual
violence (23%), kidnapping (19%), and threats (16%). Asylum seekers also reported to monitors detainments by
the Instituto Nacional de Migración (INM, National Institute of Migration), including three Tajik asylum seekers

5 Grupos Beta de Protección a Migrantes is an entity within the Instituto Nacional de Migración (National Institute of Migration)
established to provide information and basic assistance to migrants in Mexico. See https://www.gob.mx/inm/acciones-y-
programas/grupos-beta-de-proteccion-a-migrantes.
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Limits on Access to Asylum After Title 42 – June 2023 4

who said that they were taken to the Esmeralda migration station in Tijuana and asked for 1,000 pesos (about
55 USD) to avoid deportation. Because lines and informal encampments formed in public spaces, members of
the media and other individuals have photographed waiting asylum seekers, raising concerns, particularly for
Mexican asylum seekers, that publication of their images could result in their persecutors encountering them.
Lack of Accurate Information About Asylum Processes Widely Observed
Lack of information about the current U.S. asylum process rendered some asylum seekers vulnerable to
exploitation. In May 2023, an asylum-seeking Uzbek family who appeared for a CBP One appointment at the San
Ysidro port of entry were turned away by officials after a review of their documents by Grupos Beta indicated
that they had been provided a fake appointment. The family, who spoke only Uzbek and had arrived in Tijuana
four days prior, explained through an interpreter that the person who claimed to be setting up an appointment
for them had charged them for this false service. Also in Tijuana, reports were received of taxi drivers charging
exorbitant sums (up to 1,000 pesos or approximately $55 USD) to take asylum seekers to the port of entry to
request information on the asylum process. At observed ports of entry where monitors spoke with awaiting
asylum seekers without CBP One appointments, many expressed confusion about the difference between Title
42 and the current process or were unaware of the new restrictions that make individuals requesting protection
at a port of entry without a CBP One appointment, including themselves, presumptively ineligible for asylum. 6

6 The asylum ban regulation has already contributed to a nearly 50 percent drop in positive credible fear screenings from an average of

83 percent in 2014 to 2019 (before the Title 42 policy was implemented) to 46 percent in the month since it was implemented. See Hamed
Aleaziz, “U.S. is rejecting asylum seekers at much higher rates under new Biden policy,” LA Times, June 20, 2023,
https://www.latimes.com/politics/story/2023-06-20/biden-asylum-seekers-turned-down-rates.
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Limits on Access to Asylum After Title 42 – June 2023 5

Recommendations for Safe, Humane, and Orderly Asylum Processes at U.S. Ports of Entry
1. Uphold the legal right to seek asylum: The U.S. government should rescind the asylum ban regula on,
including its counterproduc ve penaliza on of asylum seekers who a empt to request protec on at ports of
entry without CBP One appointments. People seeking asylum should not be subjected to turnbacks or other
limits on requests for protec on at ports of entry. This prac ce, known as “metering,” was declared by illegal by
a U.S. federal court, and the U.S. Department of Homeland Security (DHS) mandated that its oﬃcers “may not
instruct [asylum seekers] that they must return to the [port of entry] at a later me.”
2. Surge resources to increase port of entry processing capacity: The U.S. government should maximize
asylum processing at ports of entry by direc ng the current surge in resources to the border to support CBP’s
Oﬃce of Field Opera ons’ staﬃng needs, port infrastructure gaps, and technological requirements - not for
militariza on of the border. Congress should ensure that appropria ons are directed to swi , humane, and
eﬀec ve processing at ports of entry that respects the right to seek asylum.
3. Strengthen humanitarian capacity along the border in Mexico and the U.S.: Humanitarian eﬀorts in the
borderlands have historically been underfunded and surpassed by the needs of migrants, asylum seekers and
hos ng communi es. Increased aid is needed in Mexico where people are wai ng to seek asylum and in the
United States for sustainable, orderly and safe NGO-led humanitarian recep on of asylum seekers at the border
a er DHS processing. Congress should provide addi onal funding through the State Department and the Oﬃce
of Refugee Rese lement to strengthen humanitarian capaci es on both sides of the border. In the immediate
term, DHS can shi funds away from harmful and costly migra on deten on to meet recep on service needs.
4. Develop mechanisms for urgent processing of asylum seekers with acute medical needs, heightened
security concerns, or other emergent circumstances: Resources should be dedicated, and staﬀ equipped, within
DHS to iden fy and swi ly process asylum seekers facing urgent medical and other protec on needs – many of
which arise due to the persecu on the individual is fleeing. While the asylum ban regula on remains in place,
CBP should provide to asylum seekers processed due to emergency circumstances without CBP One a wri en
waiver as proof of their situa on.
5. Scale up mely, ac onable informa on to combat misinforma on and enable asylum seekers to
locate services: Increased informa on helps people on the move to make informed choices to find pathways to
protec on and disempowers smugglers who deploy misinforma on to prey on asylum seekers. In the days
leading up to the end of Title 42, visits to IRC’s informa on pla orm for Mexico doubled compared to the prior
month, with the most searched inquiries related to understanding the changes in eligibility for asylum; Title 42
and how it impacts the ability to seek protec on; Title 8 and what it means; what the CBP One smartphone app
is and how to use it, and how to find rela ves detained by authori es on either side of the U.S.-Mexico border.
People trying to seek asylum at U.S. ports of entry remain in urgent need of accurate informa on on the process.
6. U lize technological solu ons to expand and improve eﬃciency of, not restrict, asylum processing:
The CBP One smartphone app and other technologies can present opportuni es for gains in eﬃciency and scale
but also exclude individuals who lack the means or know-how to use them, resul ng in barriers that may violate
the Refugee Conven on’s guarantee of non-discrimina on. Requiring use of such technologies to access the
asylum process, as opposed to oﬀering an addi onal pathway, is yet more concerning in situa ons where people
seeking asylum face security risks and diﬃcult humanitarian circumstances. Hinging access to seek and enjoy
asylum on whether people fleeing for their lives can book an appointment on a smartphone app is neither right
nor prac cal. The CBP One app requires significant improvements, but even with those fixes in place, it should
never be the only means to eﬀec vely request protec on at a U.S. port of entry.
Annex: Limits on Access to Asylum After Title 42 – June 2023 6

City Ciudad Juárez Nogales Tijuana
Practices Paso del Norte Port of Entry - As of early June 2023, Dennis DeConcini Port of Entry - CBP officers had San Ysidro (Pedestrian East) Port of Entry - As of May
Observed at monitors observed up to 4 to 5 asylum seekers direct interactions with waiting asylum seekers. On 24, 2023, monitors observed a total of 20 to 40
without CBP One appointments permitted by CBP to June 9, 2023, monitors observed an asylum seeker individuals without CBP One appointments processed
International approach the POE on a single day, though not every waiting in line of individuals waiting to approach the on a given day in small groups, approximately every
Bridges/Ports of day. CBP officers encouraged individuals to use the POE. When this person was next in line a CBP officer five hours. As of early June 2023, monitors noted that
Entry for People CBP One Application rather than wait in line without asked for his documents, to which he responded, “I 10 people had been processed in approximately 13- to
Seeking Asylum in an appointment and at the same time explained that have these documents related to my case, I am 14-hour period.
it was possible to be processed without an seeking asylum.” The CBP officer said “well, so are
the U.S. Without appointment. they [pointing to individuals without CBP One Some asylum seekers in the area reported being
CBP One appointments], so go back to the line and we’ll take detained by officials from INM, including three asylum
Appointments Previously on May 13, 2023, monitors noted that you as we can, that’s how we’re doing things.” seekers from Tajikistan, who said that they had been
individuals without CBP One appointments were not Previously, on May 15, 2023, monitors observed CBP taken to the Esmeralda migration station in Tijuana and
being processed and witnessed CBP tell individuals officers counting the number of people in line asked for 1,000 pesos (about 55 USD) to avoid
that asylum without a prearranged appointment without CBP appointments and telling those in line deportation. Monitors also noted the presence of
“doesn’t exist anymore." Monitors noted Ciudad that they would be attended to after individuals with Mexican National Guard, who intervened in a security
Juárez local and Chihuahua state police presence, CBP One appointments had been processed. incident witnessed by monitors.
observing the POE area.
In May and June 2023, monitors observed individuals San Ysidro (Pedestrian West) Port of Entry - As of June
Ysleta Port of Entry - As of early June 2023, there without CBP One appointments processed in small 12, individuals without CBP One appointments had not
were approximately 75 people without appointments groups (including a family of 11 people on one been observed being processed through this POE.
on an asylum waitlist, managed by asylum seekers occasion) after those with CBP One appointments Various Mexican government authorities were
themselves. CBP officers informed those at the head had been processed. Waiting asylum seekers observed interacting with asylum seekers without CBP
of the line of the number of people without reported approximately an average of 10 to 20 One appointments at this port of entry. On May 15, a
appointments to be processed at any given point. people without CBP One appointments were family of 12 Mexican asylum seekers reported that
Monitors observed up to 10 to 14 asylum seekers processed in the middle of the night on most nights. they were told by Grupos Beta to speak with CBP
without CBP One appointments permitted by CBP to Monitors observed three unaccompanied children officers, if they wished to seek asylum. The group
approach the port of entry on a single day, but also approach and access the POE for processing. As of passed through an initial screening point but were
noted at least one day on which no asylum seekers May 23, 2023, monitors noted some individuals had stopped by Mexican officials on the pedestrian bridge
were processed (May 14, 2023). Monitors noted been waiting outside the port for up to two weeks. leading to the port of entry and returned without
Ciudad Juárez local and Chihuahua state police reaching the POE. Tijuana police told the group to
presence, observing the POE area. During the first week of observations in mid-May move at least one block away from the port. On several
2023, INDAABIN (a private Mexican security firm) occasions, Grupos Beta was observed telling asylum
Between May 13 and approximately May 24, 2023, tried to remove individuals without a CBP One seekers without proof of a CBP One appointment that
FIDD (a private Mexican security firm) restricted appointment from the POE area. Monitors observed they would not be processed. Monitors observed a
access to the Zaragoza bridge and managed the queue a conversation in which CBP officers informed Tijuana police officer tell a family without a CBP One
of asylum seekers without CBP One appointments. On INDAABIN that there had been changes in US policy appointment that they had to leave the POE area and
some visits in May 2023, observers also noted INM and that individuals without a CBP One appointment stay at least one block south, or else police would
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 70 of 74

officers dissuade asylum seekers from staying on the would be processed. CBP added that that they [CBP] transport the family to the Reforma Sports Complex
bridge and ask that they leave the bridge at night. could not tell INDAABIN what to do on the Mexican where there is a migrant camp. A Tijuana police officer
side of the border. told a monitor that he communicates the message that
“the only legal form to enter the U.S. is through the
Annex: Limits on Access to Asylum After Title 42 – June 2023 7

In mid-May 2023, observers witnessed an incident in Observers also noted local Mexican police presence, [CBP One] Application.” The same officer told a
which CBP officers informed FIDD that "minors are monitoring the POE area. monitor: “We have orders to keep the POE block clean
next in line." FIDD communicated this to the next two [of asylum seekers]. If we don’t follow orders, there are
families in line who then sent their seven adolescent consequences.”
children to CBP at the POE with their mothers staying
behind in Mexico at the Zaragoza Bridge. After two Otay Mesa Port of Entry - On May 12, 2023, a group of
hours, the mothers approached CBP officers on the asylum seekers without CBP One appointments
bridge asking about their children's whereabouts. CBP attempted to access the POE just after midnight EST
informed them that they had mistakenly processed (when the Title 42 policy had ended). CBP officers
the children as unaccompanied children and would informed them to wait. At 1:15am EST, CBP officers
return them to Mexico. Two hours later CBP allowed asked the group to leave the premises and informed
the mothers to pass the CBP checkpoint and reunified them that they would not process anyone without a
them with their children at the POE. Observers spoke CBP One appointment. During that observation
with CBP officers who said that they had told FIDD to monitors asked CBP if they would be processing asylum
send unaccompanied children and had assumed that seekers, CBP responded: “it is very easy to do it
the seven adolescents were unaccompanied. through the app [CBP One], there are many shelters in
Tijuana and they help you fill out the app, you can get
Bridge of the Americas Port of Entry - As of June 13, an appointment in two or three days [through the
2023, monitors observed CBP officers at the middle of app].”
the international bridge speaking with individuals in
the line, checking their documents. Observers noted Monitors noted the presence of a Baja California Norte
that some individuals without CBP One appointments State Migrant Affairs representative, who informed
were being allowed to pass the CBP checkpoint at the individuals waiting in line that “cases without a CBP
middle of the bridge to approach the U.S. port of One appointment will not be processed” and offered
entry. to refer them to shelters.

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Annex: Limits on Access to Asylum After Title 42 – June 2023 8

Queues of Paso del Norte Port of Entry - The line of asylum Dennis DeConcini Port of Entry - Around May 20, San Ysidro (Pedestrian East) Port of Entry - In early
Individuals seekers was self-organized, with individuals assigned 2023, the municipal Bienestar Social agency June 2023, observers noted the presence of
numbers to maintain the queue. CBP officers established a system with QR codes to manage the approximately 200 to 300 asylum seekers without CBP
Without CBP One informed those at the head of the line of the number line of waiting asylum seekers without CBP One One appointments in a line waiting to access the
Appointments of individuals without appointments to be processed appointments. Staff from the agency asked for Pedestrian East side of the San Ysidro port of entry.
at any given point. asylum seekers’ full names and telephone numbers While the observers were present, Mexican authorities
and issued QR codes to the first 100 waiting asylum announced that if asylum seekers did not clear the
Ysleta Port of Entry - Since approximately May 24, seekers in line, these codes are recycled and area, the Mexican child protection service would
2023, the queue was self-organized. Previously, distributed to the next asylum seekers in line as arrive, which asylum seekers understood to be a threat
between May 13 and approximately May 24, 2023, individuals are processed. After the establishment of to remove children from their families. These
FIDD (Private Security Company), managed the list of the QR code system, only about 20 asylum seekers authorities noted the order of waiting asylum seekers,
waiting asylum seekers; CBP informed FIDD when without CBP One appointments were permitted to took down their names and phone numbers, issued
they would be processing individuals and how many remain in the physical line near the POE. Bienestar them a corresponding number (per individual or family
and FIDD proceeded to call that number of individuals Social notifies individuals in the waitlist when their group) based on their position in the line, numbers
from the list. turn is up to wait in the POE area. Once in the POE were written on asylum seekers’ arm with a marker
line, CBP officers inform those asylum seekers at the and directed them to buses that were said to be going
Bridge of the Americas Port of Entry - The line of head of the line of the number of people without CBP to shelters. It was not clear which Mexican authority
asylum seekers was self-organized. CBP officers One appointments to be processed at any given was managing the list, but these authorities contacted
informed those at the head of the line of the number point. individuals on the list to inform them to approach the
of people without appointments to be processed at POE. It was not clear to the observers how new arrivals
any given point. As of June 12, 2023, the list maintained by Bienestar would access this process and/or obtain information
Social was made up of approximately 300 individuals about it.
(with new arrivals being added). Monitors observed
the Social Wellbeing Agency make determinations Previously, between May 24 and June 2, 2023, the
about who to place at the top of the list, a staff queue outside the port was self-organized by asylum
member from the Agency told a monitor that “there seekers without CBP One appointments.
were two Russian nationals that recently arrived that
we decided to put at the top of the list.” San Ysidro (Pedestrian West) Port of Entry -
Individuals without CBP One appointments were not
Monitors observed individuals in the “walk up” line processed at this POE. As noted above, monitors
who just recently received a CBP One Appointment. observed Grupos Beta tell asylum seekers without CBP
In reference to this, Bienestar Social staff told a One appointments that they would not be processed
monitor: “I am telling them [asylum seekers] that if without appointments. In addition, Grupos Beta
they are given a CBP One appointment and try to screened individuals with CBP One appointments by
walk up [at a different time than their scheduled reviewing their ID documents and confirming their
appointment], CBP won’t take them.” identity against their CBP One appointment
information. Grupos Beta will not walk individuals who
Previously, between May 12 and May 20 2023, the lack an appointment on that date or corresponding
queue outside the port was self-organized by asylum identity documents up to the gate to access the
seekers without CBP One appointments. Pedestrian West side of the San Ysidro port of entry.
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Annex: Limits on Access to Asylum After Title 42 – June 2023 9

Humanitarian Puente Zaragoza (Ysleta Port of Entry) - As of early Dennis DeConcini Port of Entry - As of May 25, 2023, San Ysidro (Pedestrian East) Port of Entry - Between
Conditions June 2023, 30 to 50 people were in an informal there were approximately 60 individuals without CBP May 31 to June 2, 2023, an encampment of 200 to 250
encampment of asylum seekers without CBP One One appointments sleeping outside the POE in asylum seekers without CBP One appointments (over
Observed in appointments near the Zaragoza Bridge that leads to Mexico. Individuals paid 10 pesos (approximately 25 percent of whom were children) waited for access
Informal the Ysleta port of entry. Adults and families with 0.60 USD) to access a bathroom in a shop nearby but to asylum by the POE. Monitors noted medical needs
Encampments in children slept on the ground on pieces of cardboard did not have access to showers or other facilities to including children with high fever and a cough given
Mexico of People and blankets during a period with low nighttime bathe. Previously, between May 14 and May 25, 200 cold weather conditions and high-risk pregnancies; as
temperatures. Monitors noted children with apparent to 250 individuals were camped outside the POE. well as need for basic humanitarian assistance (food,
Waiting to Access symptoms of anxiety and stress, as well as children Monitors spoke with several pregnant women as water, blankets, trash bags, sanitary napkins). A 31-
Asylum at U.S. sick with colds. Monitors noted National Guard and well as individuals with physical and mental year-old Haitian asylum seeker with hypertension and
Ports of Entry Military presence, observing at the camp site. disabilities. During the day individuals reported a high risk pregnancy, who had previously been denied
fatigue from the heat and being thirsty and hungry assistance at local hospitals in Tijuana, declined an
Near the Stanton-Lerdo International Bridge and reported being cold at night, especially on rainy offer by local officials for a care referral for fear that
(Stanton Street Port of Entry) - As of May 22, 2023, days when they and their belongings had gotten she would lose her place in the informal asylum line at
the local government in Ciudad Juárez established a soaked. the San Ysidro port of entry.
camp next to the bridge leading to the Stanton Street
Port of Entry where 250 to 300 people were sleeping On June 2, 2023, monitors noted that Tijuana
in tents. Individuals bathed on the roadside until municipal authorities including the Office of Migrant
water was installed within the camp but there was no Affairs referred and transported asylum seekers in the
designated space for individuals to bathe privately. encampment near the port of entry to government run
There are no separate sleeping areas for men and temporary shelters, including one approximately 5
women. Individuals were given a water bottle and a miles south east of the POE in the Reforma Sports
can of tuna three times a day. Health needs were Complex as well as the newly established Centro
observed among the population, but I/NGOs were not Integral para las Familias shelter.
permitted access to provide health and/or other
services. Monitors noted Mexican National Guard and
Military presence, who were monitoring the site.

Parque El Chamizal (Bridge of the Americas Port of
Entry) - As of early June 2023, monitors observed an
encampment of individuals and families without CBP
One appointments in the park, waiting to access
asylum at the Bridge of the Americas Port of Entry.

Nationalities of
People Waiting to
Seek Asylum Afghanistan, Brazil, China, Colombia, Cuba, Ecuador, Colombia, El Salvador, Guatemala, Haiti, Honduras,
Without CBP One El Salvador, Guatemala, Honduras, India, Mexico, Colombia, Cuba, Ecuador, El Salvador, Haiti, Kazakhstan, Kyrgyzstan, Mexico, Nicaragua, Nigeria,
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 73 of 74

Appointments Nicaragua, Peru, Venezuela Honduras, Mexico, Russia, Venezuela Pakistan, Russia, Tajikistan, Uzbekistan, Venezuela
Case 4:18-cv-06810-JST Document 181-2 Filed 06/23/23 Page 74 of 74
Limits on Access to Asylum After Title 42 – June 2023 10

The Interna onal Rescue Commi ee helps people aﬀected by
humanitarian crises to survive, recover and rebuild their lives. We
deliver las ng impact by providing health care, helping children
learn, and empowering individuals and communi es to become
self-reliant, always with a focus on the unique needs of women and
girls. Founded in 1933 at the call of Albert Einstein, we now work
in over 40 countries and 28 U.S. ci es.

Interna onal Rescue Commi ee
122 East 42nd Street
New York, NY 10168-1289
USA

Rescue.org

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Declaration with Exhibits on Asylum Processing — East Bay Sanctuary Covenant v. Biden (N.D. Cal.)

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