DHS OIG and CRCL Complaint Regarding “Digital Metering”

Joseph Cuffari
Inspector General
U.S. Department of Homeland Security
254 Murray Lane SW
Washington, D.C. 20528

Shoba Sivaprasad Wadhia
Officer for Civil Rights and Civil Liberties
U.S. Department of Homeland Security
Building 410, Mail Stop #0190
Washington, D.C. 20528

Re: The de facto digital metering system created by the Department of Homeland Security’s implementation of the Circumvention of Lawful Pathways Final Rule knowingly exposes people seeking asylum in the US to systematic abuse in Mexico and the risk of injury or death, in violation of its policies and legal obligations

Dear Mr. Cuffari and Ms. Sivaprasad Wadhia:

Human Rights Watch submits this complaint and requests that the Department of Homeland Security (DHS) Office of Inspector General (OIG) and Office for Civil Rights and Civil Liberties (CRCL) investigate and report on the Circumvention of Lawful Pathways Final Rule (“the Rule”)[1] and its implementation. As a part of this investigation and report, DHS and OIG should examine how the Rule operates as a de facto digital metering system that includes border turnbacks by Customs and Border Protection (CBP) Office of Field Operations (OFO) officers and by Mexican officials on behalf of the US government. Human Rights Watch asks OIG and CRCL to find that DHS use of the Rule has knowingly exposed asylum seekers to the threat of persecution and other serious harm in Mexico in violation of department policies and the obligations of the United States under federal and international law.

Human Rights Watch is an international, nonprofit, non-governmental organization that investigates and reports on abuses around the world, based on accurate factfinding and impartial reporting. This complaint is based on research Human Rights Watch conducted in August and September 2023 in Mexico City; Saltillo and Piedras Negras, Coahuila; Monterrey, Nuevo Leon; Nuevo Laredo, Tamaulipas; and Eagle Pass, Texas. Human Rights Watch also observed attempts by asylum seekers to access US ports of entry in Piedras Negras and Nuevo Laredo. This research is based on Human Rights Watch interviews with 128 asylum seekers, who were able to share information on the experiences of a total of 263 people, including family members and friends with whom they were traveling. Most had been subjected to the CBP One appointment system. Human Rights Watch also interviewed 13 shelter workers, eight migrant service providers, Mexican government officials, and human rights workers, and reviewed the CBP One mobile application for accessibility and usability. The research was conducted for the purpose of a forthcoming report.

These interviews and our review of open-source materials, including reports from journalists and NGOs, build on past research shared with OIG and CRCL[2] and further illustrate the risk of serious harm that tens of thousands of US asylum seekers face in Mexico because the US government forced them to wait there or sent them there without sufficient due process protections.

The Circumvention of Lawful Pathways Rule

The Rule imposes a rebuttable presumption of ineligibility for asylum for noncitizens who enter the United States from Mexico between May 11, 2023, and May 11, 2025, if they have travelled through a country other than their own that is party to the Convention relating to the Status of Refugees or the Protocol relating to the Status of Refugees.[3] The presumption does not apply to noncitizens who appear at a port of entry “pursuant to a pre-scheduled time and place”[4]—obtained through the Department’s CBP One app[5]—or to those who can demonstrate by a preponderance of the evidence that “it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”[6] The presumption can be rebutted by a showing of “exceptionally compelling circumstances,”[7] including “an acute medical emergency,”[8] “an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder,”[9] or “a severe form of trafficking in persons.”[10]

The Rule combines several policies used by the previous administration, including a "third country transit ban" found unlawful by two federal courts[11] and “enhanced” expedited removal proceedings with no meaningful due process.[12]

As described more fully in the following sections, even in cases where an asylum seeker plainly qualifies for an exception, in practice, they are often blocked by CBP officers and Mexican government officials from accessing the port of entry and making their case.

Moreover, CBP has imposed strict limits on the number of asylum seekers who can access US ports of entry each day. The result is metering – the processing of a limited number of asylum seekers into the country at a given time while turning others away, forcing them to wait in dangerous conditions at the border for an indeterminate amount of time.[13]

CBP One Imposes Barriers to Asylum

The CBP One app presents significant practical obstacles. The app is only available in English, Spanish, and Haitian Kreyole, but many arriving asylum seekers, including those who come from Asia, Africa, the Middle East, Europe, and indigenous communities in the Americas, do not speak those languages.[14]

The app requires a reliable cellular or wireless connection. Even then, people frequently experience delays and other difficulties in accessing appointments.[15] In fact, more than 200 asylum seekers told us they had problems using the app.[16]

Lack of familiarity with smartphones and app-based registration systems contributed to these difficulties. For instance, Paulina I., 56, traveling with her 62-year-old husband, had to ask a shelter worker in Nuevo Laredo for help to register on CBP One. She said they did not understand how to use this or other apps, have very little experience using smartphones, and struggled to input a Human Rights Watch researcher’s contact information into her phone.[17]

Similarly, Damaris C., a 30-year-old woman who fled Colombia with her husband and their 8- and 15-year-old sons, told Human Rights Watch that her teenage child had become responsible for managing CBP One on behalf of the family since her husband could not see well enough to use the app and she did not “know anything about technology.”[18]

Such accounts were typical of those we heard, particularly from people in their 50s and 60s, who were often unfamiliar with the use of smartphones.

In fact, according to a 2022 World Bank report, many asylum seekers applying to the US have fled countries with very low smartphone penetration rates per household.[19] While many people in the United States are familiar with using internet-based forms equivalent to those used on CBP One, only 5 percent of households in Haiti have access to a fixed internet connection, 25 percent in Nicaragua, 31 percent in Guatemala, 40 percent in Honduras, 43 percent in El Salvador, 55 percent in Bolivia, and 65 percent in Mexico.[20] There was no data on Venezuela, but a 2018 Pew Research report found 32 percent of Venezuelans did not own a mobile phone, let alone a smartphone.[21]

When asylum seekers have questions about how to use the application, there is no one at CBP they can call, fueling a high level of confusion and misinformation around how to use the application.[22] Many asylum seekers told Human Rights Watch that they tried to troubleshoot application errors or avoid long wait times by deleting their accounts and re-registering several times, while others said they were forced to re-register because they had entered information incorrectly, exposing them for longer periods of time to targeted abuse in Mexico.[23] For asylum seekers who lose access to their authentication methods – for example, because they have forgotten their email password or have had their phone stolen – a US government website advises asylum seekers to delete their accounts and requires them to wait 24 hours before they are allowed to create a new account, further lengthening wait times.[24]

With US ports of entry effectively closed to most asylum seekers who do not have a CBP One appointment, the lack of usability in the app contributes to irregular border crossings and jeopardizes asylum seekers’ protection claims under the Rule. It further poses a risk to non-discrimination rights, as those without access to smartphones, internet coverage, or who do not have the language or digital literacy to use the app, may be disproportionately harmed by the lack of alternative means to secure asylum appointments.

CBP One deploys artificial intelligence (AI) via ‘Use of Technology to Identify Proof of Life’ or ‘liveness detection’, a machine vision tool “to determine if the face presented to the app is the person in front of the camera at the time of capture and not a photo, mask, or other spoofing mechanism”.[25] Asylum seekers must allow the app to take a photo of their face when registering on CBP One, and again to confirm their appointment. [26] Later in the process, an asylum seeker’s likeness is compared with their identity documents, akin to facial verification (1:1 matching) technology.

According to DHS, “[b]eing able to accept submitted data with confidence that the submitting individual is who and where they claim to be is critical to the functionality of the app” [27], yet asylum seekers and migrant shelter workers told HRW that the liveness detection does not always work for asylum seekers with darker skin tones. They reported having to shine a bright light on asylum seekers’ faces in such situations, seeking to lighten their skin tone in order for them to pass the app’s ‘liveness’ test.[28]

Any AI system in CBP One ought to meet the Guiding Principles for AI Use at DHS, including the pledge to “Advance equity and fundamentally fair treatment and guard against impermissible discrimination”.[29] Furthermore, DHS Directive 026-11 on ‘Use of Face Recognition and Face Capture Technologies’ outlines that the responsible department must ensure that civil liberties standards are met where such technology is deployed, including “minimizing bias in operational use, and safeguarding individuals against disparate impacts based on protected characteristics”.[30]

CBP One Is Effectively Mandatory

The US government claims that having a CBP One appointment is not required to enter the United States, but the Rule makes the CBP One appointment system effectively mandatory for non-Mexican asylum seekers in order to meaningfully access the US asylum system. As stipulated by the rule, non-Mexican asylum seekers who have not entered the United States using the CBP One appointment system and who are unable to demonstrate they applied for and were denied asylum in a country of transit will be removed to Mexico or to their country of origin,  sooner - in enhanced expedited removal proceedings held in Border Patrol custody - or later - when they appear in immigration court. Federal asylum officers required to rapidly adjudicate claims under the rule’s enhanced expedited removal proceedings have spoken out against the policy, saying it is “inconsistent with the asylum law enacted by Congress, the treaties the United States has ratified, and our country’s moral fabric and longstanding tradition of providing safe haven to the persecuted.”[31]

Most non-Mexican asylum seekers—who face harsh consequences including potential criminal charges, detention in jails, and deportation to Mexico or their country of origin with a 5-year ban on return to the United States for requesting asylum without an appointment—have virtually no choice but to use CBP One and wait in danger in Mexico.[32]

Indeed, asylum seekers told Human Rights Watch they were waiting in danger in Mexico to avoid the greater danger of being deported to their country of origin by the United States.[33]

Metering at the US-Mexico Border

By making CBP One effectively mandatory, the Rule institutes a de facto digital metering system, a variation on an earlier practice of limiting the number of asylum seekers processed at ports of entry at any given time.

Metering at the US southern border was first documented under the administration of President Barack Obama in 2016.[34] It was formalized and expanded under the Trump administration in 2018, when Mexican officials, shelter workers, and even migrants themselves managed paper lists of those waiting to present themselves at a US port of entry as a response to the limited number of asylum seekers CBP officers said they would process on a given day.[35]

A class action lawsuit, Al Otro Lado v. Mayorkas, ongoing since 2017, challenges the US government’s use of metering, arguing that both Trump and Biden administration policies blocking asylum seekers and forcing them to wait in Mexico violates the US Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the doctrine of nonrefoulement—the principle of international law that forbids any state from returning a person to a country where they would face persecution or torture.[36] The US is party to the 1967 Protocol on Refugees, which binds it to the legal definition of nonrefoulement as written in the 1951 Refugee Convention. Policies that return asylum seekers to serious harm constitute a violation of US nonrefoulement obligations under international refugee law. The lawsuit contends that metering policies have unlawfully subjected asylum seekers to prolonged danger and deprived them of their right to seek asylum.[37]

The US government argued limits on processing and turnbacks of asylum seekers were the result of limited capacity, but a 2020 DHS OIG report found that CBP officials “used these reasons regardless of the port’s actual capacity and capability.”[38] In fact, CBP’s claimed lack of capacity was often untrue.[39]

On September 2, 2021, a federal district judge partially granted summary judgment for the plaintiffs, holding that the government had violated statutory and due process obligations by turning back asylum seekers at ports of entry without inspecting and processing them.[40] The judge ruled the practice was illegal, even in cases where the person was not in US territory when the turnback occurred.[41]

On November 1, 2021, CBP formally rescinded the metering policy[42]. Under the Rule, however, CBP One acts as a digital metering list and extends the “virtual border” as far south as Mexico City.

The plaintiffs in Al Otro Lado v. Mayorkas have filed a new class action complaint against the Rule, arguing that the de facto digital metering system created by the rule “is just the latest manifestation of the government’s multi-year effort to block asylum access for asylum seekers in the process of arriving at the southern border.”[43]

Turnbacks by CBP Officers

The Rule has also emboldened CBP officers to conduct turnbacks of people seeking asylum at ports of entry even though the Rule is only supposed to be applied by USCIS asylum officers and immigration judges. CBP officers have been screening for and turning away asylum seekers without a CBP One appointment, including Mexican nationals (to whom the rule does not even apply), constituting a direct violation of the principle of nonrefoulement whenever it results in the return of a refugee to persecution, torture, or other serious harm.

This is happening despite an internal CBP “metering guidance” in April 2018 that instructed CBP officials to be “particularly aware” of any efforts by Mexican authorities to prevent Mexican nationals claiming fear of return from entering the United States and advising CBP officials to “work with INM, as appropriate, to address such concerns” – an acknowledgement of the special care required to ensure Mexican asylum seekers are not returned to persecution.[44]

Human Rights Watch accompanied Sandra S. and her family — all Mexican citizens — in their second attempt to present themselves  at the Laredo port of entry in September 2023 to seek asylum after they had been identified and threatened by members of a cartel that operates in Nuevo Laredo.[45] Even though the family and a Human Rights Watch researcher  told CBP officers of the threats and danger the family would face upon return to Mexico, as well as the additional protections that apply to people fleeing Mexico, the officers nonetheless turned the family back.[46]

At the time, CBP OFO officers said they had already processed everyone they were going to process that day, all of whom had an appointment via CBP One, and that they did not have “capacity to process anyone without an appointment.”[47] The prior appointment requirement in the Rule applies only to non-Mexican asylum seekers who transited Mexico before reaching the US border.[48]

The Rule also does not give CBP officers the authority to turn any asylum seekers away, no matter where they are from. According to the Rule, “migrants do not apply for asylum with CBP at a port of entry. At ports, CBP is responsible for the inspection and processing of all applicants for admission, including individuals who may intend to seek asylum in the United States.”[49] The Rule is applied by USCIS asylum officers and/or US immigration judges, who are tasked with adjudicating claims after initial processing by CBP which entails ascertaining whether the person claims a fear of return as well as involving security vetting.[50]

It goes on to affirm: “Noncitizens are not required to make an appointment in the CBP One app to present at a POE, and CBP policy provides that in no instance will an individual be turned away from a POE.”[51]

A CBP officer who identified herself as a supervisor eventually told Sandra’s family they would need to go back to Nuevo Laredo and wait for a CBP One appointment.[52] Hours after the family had arrived and told CBP officers they were fleeing Mexico and would like to seek asylum in the United States and after waiting in heat that reached over 100 degrees Fahrenheit, CBP officers threatened to call the Mexican National Guard to come remove the family if they did not leave of their own accord.[53] 

Sandra and her family were living in an encampment of roughly 100 people in Nuevo Laredo when we visited in early September 2023. The encampment is located in Mexico, across the border from Laredo, Texas. Asylum seekers, including many young children, sleep there beneath tarps with no security or basic services.

There were nine Mexican citizens total in the encampment at the time, all of whom said they had been turned back by Mexican or US officials at the Laredo port of entry.[54]

Non-Mexicans also reported border turnbacks by CBP officers.

Denny G., a 33-year-old Cuban asylum seeker, who also had been waiting in Nuevo Laredo in the encampment for one month, said he tried to enter at a port of entry twice, but was turned back—once by CBP officers on the middle of the bridge and once by Mexican National Guard soldiers. Such soldiers, armed and uniformed, stand in front of the bridge’s entrance and prevent asylum seekers without a CBP One appointment from crossing.[55] He said he planned to try again along with four other asylum seekers he had met on the journey.[56]

“There is too much violence here,” Denny said, referring to the high level of kidnappings and surveillance of migrants by cartel operatives. “Why don't they process the people waiting here at the encampment?”[57]

Lara D., a 23-year-old asylum seeker from Venezuela, traveled by car via the rideshare application DiDi to the Laredo port of entry. About two blocks from the international bridge, a black truck carrying two armed men she believed were cartel members pulled out in front of the car, forcing the vehicle to stop.[58] One of the men got out of the truck and got into the car Lara was in with her husband, cousin, and parents. He began “speaking very strongly” with the DiDi driver, telling him to take another route. The armed man told Lara and her family that they needed to be registered and that their photos would be taken and information collected. That is the process cartels engage in after kidnapping to demonstrate and exert their control and to ensure as many migrants as possible are extorted. The rideshare driver hit the gas, launching the car forward with the door open and causing the armed man to fly out of the car. The driver left them at the entrance to the Laredo port of entry, and the family hurried across the bridge. In the middle of the bridge, they were blocked by CBP officers who, despite learning what had just befallen the family and being told the family had a fear of return to both their country of origin and Mexico, sent Lara and her family back to Mexico.[59]

“[CBP] said they had already processed all the people they were going to process that day and they would not accept us,” Lara said.[60]

Mexican Officials Block Border Access on Behalf of the US Government

CBP has repeatedly claimed it has no agreement with Mexican authorities requiring the latter to assist the US in turning back asylum seekers who arrive at a US port of entry without a CBP One appointment. Yet Human Rights Watch found evidence of close collaboration.

At almost each of the eight ports of entry for which CBP One appointments are assigned, Mexican government officials or security contractors are present on the Mexico side, blocking access to the international bridge, a new development which took place after the Rule was implemented. These government officials or representatives actively screen asylum seekers for CBP One appointments.[61] If an asylum seeker does not have proof of an appointment, they are often barred from accessing the port of entry.[62]

Paulina I., a 56-year-old woman fleeing Guerrero, Mexico, with her husband after cartel operatives extorted, threatened, and kidnapped the couple, reported they were turned away at the Laredo port of entry in August 2023 by Mexican officials. The couple fled their hometown after they could no longer afford the extortion payments the cartel was demanding. On their way, the cartel kidnapped them and threatened to kill them but ultimately decided to keep the couple’s truck and the farm animals they were traveling with as payment.[63]

“We had to choose between our truck and our animals or our lives,” Paulina said.[64]

When they arrived at the Nuevo Laredo bus terminal, different cartel operatives questioned them about what they were doing in the city. They lied and said they were visiting someone. When they got to the Laredo port of entry where they hoped to turn themselves in to CBP officers, they were stopped by Mexican National Guard soldiers who asked if they had a CBP One appointment. The soldiers sent them to speak to INM agents, who, seeming surprised, asked the couple whether they had not already been stopped by anyone at the bus terminal. The agents gave them a list of migrant shelters to stay at in Nuevo Laredo and turned them away. All of the shelters were closed and the family was forced to wait in the insecure makeshift encampment near the US port of entry.[65]

Alex H., 26, fled death threats from members of a transnational criminal organization in Honduras in June 2023 and had been waiting for an appointment via CBP One for 45 days in Monterrey with his mother. The two ran out of money, so Alex began working a construction job. While working one day, an arc of electricity passed from a tool to his body, and he sustained third-degree burns over much of his body, including on his torso, arms, legs, and neck. Human Rights Watch first spoke to Alex as he lay in a rudimentary health clinic unable to walk. The clinic is adjoined to a migrant shelter where people are typically treated for severed limbs after falling from La Bestia, a cargo train that migrants often ride through Mexico to the border. Alex had developed a fungal infection in some of the burn wounds that was not being treated at the shelter clinic and urgently needed to enter the United States for emergency medical care.[66]

While CBP said the family would be allowed to cross the border and even offered to schedule an ambulance to take Alex and his mother directly to a hospital, when the two arrived at the Mexico side of the Eagle Pass port of entry in September 2023, guards with Grupo Enlace, an agency formed by the city of Piedras Negras government, told the family that without a CBP One appointment, they could not cross the international bridge.[67] Enlace guards told Alex and his mom they already had called CBP and been told the family did not have permission to cross.[68] The family was eventually able access the port of entry, but only after the repeated intervention of monitoring groups and groups providing legal services and only after hours of waiting in severe heat—a serious health risk for Alex.

Two days earlier, Human Rights Watch had spoken to a man who identified himself as a Grupo Enlace supervisor.[69] “We are working with Mexico and the United States to ensure that only people with CBP One appointments can cross,” he told a Human Rights Watch researcher.[70]

The supervisor said that security guards are posted in front of the international bridge entrance 24 hours a day where they screen people for appointments. He said they stop both Mexican and non-Mexican asylum seekers who do not have an appointment. He also said he was not aware of any law that states that Mexicans have a right to leave their country, was not aware of the obligations of the United States or Mexico not to commit refoulement, or other provisions of international refugee law.[71]

The supervisor repeated to a Human Rights Watch researcher that the guards were working for the United States. He said this while three other Grupo Enlace guards stood next to him, within hearing of his comment.[72]

Grupo Enlace is an agency that is part the city of Piedras Negras, Coahuila.[73] Piedras Negras city communications manager, Jesús Chávez Martínez, told Human Rights Watch that the Grupo Enlace guards were posted at the port of entry to prevent migrants without permission to enter the United States from accessing the bridge.[74] He said the Grupo Enlace presence is part of “a deal for the US to open its bridges again for Mexicans.”[75]

On Sept. 20, 2023, the US government shut down one of the international bridges between Piedras Negras and Eagle Pass, Texas, for 5 weeks, citing an increase in the number of arriving migrants.[76]

The Issue of Capacity

CBP has allotted a mere 1,450 appointments per day on the CBP One app at only eight, out of a total of 48, ports of entry at the southern border.[77]  In September 2023, border arrivals rose to 8,000 migrants per day.[78] The very limited number of CBP One appointments, which CBP and DHS officials have again said reflects CBP’s limited capacity, fails to meet asylum processing needs.[79] Whether actual daily capacity is as limited as CBP officials claim, overall capacity is in large part a reflection of the administration’s priorities and choices. The US government has significant resources at its disposal to increase humane processing capacity yet has created a backlog-generating vicious cycle.

CBP’s increasing use of enhanced expedited removal proceedings under the Rule leads to more asylum seekers being held well beyond the 72-hour limit in CBP facilities, consuming significant agency capacity that could otherwise be used to process arriving asylum seekers. That in turn contributes to a further processing backlog as the number of asylum seekers arriving in northern Mexico continues to grow.  More people are thus driven to cross between ports of entry, making them vulnerable to being placed in the enhanced expedited removal and further limiting capacity, ad infinitum.

Some asylum seekers who cannot endure the long waits to get an appointment on CBP One or who face application errors, barriers to accessing the application, targeted abuse in Mexico, and the obstruction of US and Mexican officials at the ports of entry, are now choosing to enter between ports of entry, which jeopardizes what otherwise are often strong claims for protection under US and international law. The creation of a system that requires unlawful actions due to the mismatch between factual realities on the ground and the capacity the system allows for needlessly puts lives at risk and erodes faith in US laws.

The Rule says that exceptions will be made for people who can show they could not access the application, do not speak one of the available languages, have low literacy levels, or face an immediate threat to their lives. Asylum seekers must demonstrate to both US asylum officers and again to immigration judges by “a preponderance of the evidence” that they qualify.[80] CBP agents have cited the Rule’s evidentiary requirement when turning asylum seekers away.[81]

Human Rights Watch witnessed a Laredo CBP officer, identified by his nametag as “Reyner,” tell another CBP officer in front of Sandra and her family that asylum seekers had “milked the system” and that they would “not allow them to do it again.” He told the family that any asylum seekers who arrive without proof they filed a police report would be automatically turned away.[82] There is, however, no requirement to file a police report in one’s country of origin to apply for asylum in the US, nor are asylum seekers required to show CBP evidence of their asylum claims. Sandra and her family did not feel safe speaking to the Mexican police and had not filed a police report.[83] Among other concerns, Mexican law enforcement officials routinely extort migrants and have also been implicated in working with organized criminal groups to kidnap and otherwise harm them.[84]

Officers at CBP should not be allowed to decide whether someone qualifies for an exemption to the Rule. This in fact puts CBP officers in a role that the Rule assigns to US asylum officers.

Harm in Mexico

The digital metering system leads to potential unlawful return of asylum seekers to persecution or torture in Mexico and third countries.[85] Asylum seekers subjected to metering at the US southern border face extended wait times in Mexican border cities where they are systematically targeted by cartels and Mexican government officials for abuse, including kidnapping, extortion, sexual assault, robbery and other violence, and where they experience a lack of access to basic services and necessities.[86]

Human Rights Watch documented wait times for people seeking appointments to request asylum via the CBP One app ranging from a few days to four months. Most asylum seekers with whom Human Rights Watch spoke or about whom we had knowledge (family members and friends with whom they were traveling) had been waiting for more than two weeks for their CBP One appointments. One hundred fourteen of those asylum seekers had been waiting for a month or more in Mexico.[87]

Mexican President Andrés Manuel López Obrador has previously agreed to accept non-Mexican migrants expelled or sent there by the United States in the contexts of the “Remain in Mexico” policy in 2019 and Title 42 summary border expulsions in 2020. Migrants were targeted in largely the same ways throughout those policies.

Human Rights Watch found that cartels regularly monitor transit into, within, and leaving cities where they operate to identify migrants.[88] In several different cities, cartel operatives or Mexican government officials collaborating with cartels engaged in the same basic process: the cartel operatives kidnap migrants, take their cellphones, bring them to a “stash house” where other kidnapped people are often held, review and collect information from migrants’ identity documents, photograph them, and then call loved ones to demand a ransom payment.[89]

Many migrants have friends or family in the United States who can potentially make ransom payments on their behalf which organized crime operatives ask for in US dollars, according to dozens of interviews conducted by Human Rights Watch over the last four years,[90] making them an attractive target for kidnapping and extortion by cartel operatives. Undocumented migrants are also particularly vulnerable to extortion by Mexican police and immigration officials who can threaten them with deportation or removal to southern Mexico and who are rarely held accountable for abuses.[91]

“Migration became an international business, and they wanted a cut,” said Raymundo Ramos, director of the Comité de Derechos Humanos de Nuevo Laredo. “Cartels, especially in the north, started seeing migrants as part of their business model.”[92]

Ramos said that while his organization has observed a steady increase in kidnappings of migrants at the border and has supported victims, they do not dare document kidnappings officially because doing so would make them targets for violence as well.[93]

Eddy L., 40, a Venezuelan asylum seeker, said a woman wearing a uniform with an INM logo on her shirt stopped a bus he was riding in and took him off it when he had no money and could not pay the amount she was demanding. INM agents detained him and removed him to the border with Guatemala after forcing him to sign an agreement that he would leave Mexico through its southern border. Traveling north once more, he rode atop a cargo train along with hundreds of other migrants and was robbed of his cellphone. Asylum seekers are frequently robbed of their cellphones, which poses yet another barrier to getting an appointment. Near Celaya, in the Mexican state of Guanajuato, he witnessed around 15 people kidnapped from the train by unidentified men. He managed to run away.[94]

Javi J., 42, a Honduran asylum seeker, was kidnapped in Reynosa, in the Mexican state of Tamaulipas, for two months until his brother could pay a ransom of US$4,000.[95]

Carlos M., 32, who fled Honduras when an organized criminal group threatened to kill him and his family, was kidnapped by Mexican police in Tonalá, Jalisco, Mexico, for three days.[96]

“They hit me and sent photos to my family saying that they would kill me if they didn't pay,” Carlos said. His mother-in-law paid a ransom of US$2,000 for his release, and the police released him at the border with Guatemala.[97] Carlos was approved by CBP for a humanitarian exemption to the Title 42 expulsion policy, the request for which was submitted by Human Rights Watch in August 2021.[98] Because Carlos was detained by INM and expelled to Guatemala, only his wife and child were able to make it to the port of entry in time to cross.[99] Carlos was forced to cross Mexico three more times.[100] Most recently, in September 2023, he was detained by INM while waiting for a CBP One appointment, sent to the south of Mexico, and had to make his way north once more.[101] He had not seen his family in more than two years. When he did not receive a CBP One appointment, he crossed the border irregularly, entering without inspection, reuniting with his wife and child.[102]

Nicolas P., 20, a Honduran asylum seeker, was kidnapped shortly after arriving at a hotel in Durango. Men who identified themselves as police, used police uniforms, and used police cars showed up and took him from his room, leading him to believe the hotel staff called them. The police delivered him to a cartel stash house, where he witnessed a total of around 150 other kidnapped migrants while he was there. Cartel operatives took his phone and, after four days, had him call his family, who paid a ransom of US$1,000 for his release. The police then came to pick him up from the cartel stash house and took him back to the hotel, saying that “everything has been arranged.” He said he believes that the hotel workers, the police, and the cartel are working together to operate an efficient kidnapping ring.[103]

Kidnapping and extortion of migrants as a cartel business model grew as the result of the Trump administration’s metering policy, Remain in Mexico, and rapid expulsion policies that exposed migrants to harm in Mexico, often for extended periods of time.[104] Under Biden administration policies, kidnapping and extortion rings targeting migrants have expanded further, with reports of new kidnapping operations in cities in central Mexico, including Torreon and Durango.[105]

In Nuevo Laredo, Mexico, across from Laredo, Texas, the cartel has charged asylum seekers with a CBP One appointment US$500 for permission to cross, and initially wanted shelter workers to carry out the extortion on their behalf, according to shelter workers and asylum seekers in Nuevo Laredo.[106] Instead, the shelters closed, leaving thousands of asylum seekers waiting weeks and months for their CBP One appointment in a makeshift encampment about two blocks from the US port of entry with no security or access to basic services.[107]

Many asylum seekers in Nuevo Laredo told Human Rights Watch they saw cartel lookouts continue to surveil the river to ensure that asylum seekers are not able to turn themselves in to CBP there, and they visit the makeshift refugee camp, taking photos of the asylum seekers, including children, warning them that they will be seriously harmed if they try to cross the border without paying.[108]

The cartel also kidnaps migrants directly from the bus terminal in Nuevo Laredo.[109] Taxi and rideshare drivers in Nuevo Laredo are reportedly forced to participate in a WhatsApp group they share with cartel operatives where they must notify the cartel when they have migrant passengers and turn migrants over to the cartel when asked.[110] Even the migrant shelters were compromised before shutting down. Some workers extorted migrants on behalf of the cartel while others turned over migrants’ identifying information to the cartel on a regular basis, the workers themselves told Human Rights Watch.[111]

The Biden administration claims that the expedited removal of people who cross the border without a CBP One appointment will disrupt smuggling networks. However, HRW found the opposite to be true. With no other way to access protection, asylum seekers are more likely to engage smugglers, further enriching criminal cartels.[112]

Deportations to Mexico Under the Rule Risk Refoulement

In May 2023, Mexico agreed for the first time to receive deportations from the United States of third-country nationals under Title 8. [113] When CBP officials deport non-Mexican asylum seekers from Haiti, Nicaragua, Venezuela, and Cuba to Mexico, they turn them over directly to Mexican INM agents,[114] who often detain those asylum seekers, place them on buses they are not allowed to leave for up to three days, and send them to cities in southern Mexico,  without screening for protection needs.[115] When effectuating what INM calls “transfers” to southern Mexico, [116] INM officials often compel asylum seekers to sign an agreement saying they will leave the country of Mexico via its southern border within a certain number of days.[117]

Asylum seekers told Human Rights Watch that INM agents yelled at them and would not allow them to read what they were signing. They said that INM agents never asked them if they had a fear of return to their home country or to Guatemala.[118]

CBP data show nearly a 10-fold increase in transfers of all migrants since the Biden asylum rule went into effect in May 2023 and since Mexico agreed to accept US returns and removals of non-Mexicans, also in May, from 3,552 people in April, when those transferred were Mexican nationals only, to 30,009 people in August, with transfers then including Mexican and non-Mexican nationals.[119] The National Institute of Migration (INM) told Human Rights Watch it had received 31,409 non-Mexicans deported from the United States from April 2023 through September 28, 2023.[120]

Lena, 56, and her nephew Fernando, 24, fled Venezuela and Colombia with Lena’s son, daughter-in-law, and their two children. After a long and harrowing journey, they turned themselves in outside of the Eagle Pass, Texas, port of entry. CBP then separated the family three ways: Lena’s son, wife, and children were allowed to enter the United States, while Fernando was sent to El Paso and held in CBP custody for 16 days, and Lena was sent to Laredo for a few days and then to El Paso. In total, Lena was held in CBP border jails for 22 days where she said she was only questioned by CBP agents about whether she had a fear of return to Mexico, not to her country of origin.[121]

Fernando told Human Rights Watch that CBP tried to get him to accept a voluntary return to Mexico.[122] “Border Patrol kept telling me that if I continued to insist on my fear of return then I would be deported,” Fernando said. “They told me dozens of times.”[123]

Lena and Fernando were interviewed by US asylum officers who found they did not qualify for one of the exceptions to the Rule.[124]

At different times, and without allowing them to communicate with one another, CBP deported Lena and Fernando to Mexico. In both cases, CBP shackled the Venezuelan asylum seekers and marched them across the international bridge into Ciudad Juarez, Chihuahua, Mexico, and turned them over directly to INM agents. Their shackles were only removed as the custody transfer occurred. In both cases, INM agents detained them, put them on a bus with other asylum seekers deported by the United States without access to asylum processing, and had them driven for three days to Villahermosa, Tabasco a state bordering Guatemala. INM agents coerced them to sign a document agreeing to depart Mexico through its southern border with Guatemala of their own accord.[125]

Because CBP agents never returned Fernando’s personal belongings, he found himself once again in southern Mexico, a country where he and his family had already experienced abuse, with no documents, no cellphone, and no money. Lena arrived a few days later, but the two didn’t manage to find one another again until they’d both made it to northern Mexico once more.[126]

Alana T., 54, left Venezuela with her daughter, 30, her son-in-law, 31, and her four grandchildren, ages 1, 2, 8, and 9. After they turned themselves in by crossing the Rio Grande near the port of entry in Eagle Pass, CBP agents threw away Alana’s diabetes medicine and separated her from the rest of her family. While CBP processed her children and grandchildren into the United States, CBP detained Alana for a total of 10 days without medical treatment. Alana said that she was seen by people who identified themselves as medical professionals while in CBP custody. She said she told them that she has diabetes, that CBP officials had thrown away her medication, and that she needed replacement medication. Alana never received any medication. CBP  then deported Alana to Nuevo Laredo, Mexico, because she had not arrived with a CBP One appointment, turning her over to INM agents at the Nuevo Laredo port of entry. INM placed Alana on a bus to Villahermosa, Tabasco, a state bordering Guatemala, with 40 other women. They were not allowed off the bus for the entirety of the three-day trip. They then coerced the women into signing a paper agreeing to leave Mexico via its southern border.[127]

In September, Mexico made an official and public agreement with the United States to remove even more asylum seekers from the US border and transfer them to southern Mexico or to their countries of origin by land and air.[128]

In the United States, asylum seekers can present themselves at or between ports of entry and request protection under both domestic and international refugee law. Turnbacks by US officials of arriving asylum seekers based on their participation in a US digital metering system constitute a likely violation of nonrefoulement obligations of the United States and Mexico, under international refugee law and under both countries domestic laws. If a person is a refugee, they retain that status and protection against refoulement, whether or not their asylum claims have been assessed. OIG and CRCL should investigate CBP turnbacks at the border and hold officers accountable for misconduct, including by:

• misinforming migrants about policies, procedures, and requirements at the port of entry;
• dissuading migrants from exercising their right to seek asylum;
• coercing migrants to accept “voluntary” departure to Mexico;
• verbally abusing migrants and treating them disrespectfully: and for
• officers’ violations of  law and policy, such as:
  • overstepping the roles assigned to asylum officers and immigration judges to determine who qualifies for exceptions to the requirement for a pre-scheduled appointment or who is able without an appointment to overcome the presumption of asylum ineligibility;
  • colluding with Mexican officials and contractors to block access to US ports of entry; and
  • requiring migrants to make an appointment in the CBP One app to present at a POE, despite the explicit CBP policy that “in no instance will an individual be turned away from a POE” for failure to have made an appointment through the CBP One app.[129]  

When Mexican officials conduct turnbacks, issue orders of removal, or transport migrants to the Mexico-Guatemala border at the behest of or in agreement with the United States government,[130] each of the United States and Mexico is responsible for any resulting violations of the principle of nonrefoulment. It is a general principle of international law that a state, the United States in this case, may not avoid its international obligations by allowing or encouraging a second state to commit acts that would be prohibited if committed by the first state. Article 15 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts of the International Law Commission states that a State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.[131]

The US government’s digital metering system also likely violates US obligations under international refugee law not to engage in refoulement. While international refugee law does not formally provide an asylum seeker (a person claiming to be a refugee) the right to enter, the refoulement prohibition provides little latitude when the asylum seeker appears at a land border. Every asylum seeker’s claim must be fairly assessed to ensure no refugee is returned to harm. The UNHCR executive committee, which issues formal conclusions that interpret the 1951 Refugee Convention and its 1967 Protocol, has issued a series of conclusions saying that the principle of nonrefoulement includes a prohibition on rejecting refugees at the border.  For example, ExCom Conclusion 99 calls on States to ensure "full respect for the fundamental principle of nonrefoulement, including non-rejection at frontiers without access to fair and effective procedures for determining status and protection needs." 

The metering system, including through the use of the CBP One application and by the actions of CBP agents and Mexican officials working in collusion with them, rejects asylum seekers at the frontier. The promise of entry at a later date does not meet the standard of “fair and effective procedures” for determining asylum claims.  Refugees like Sandra S. do not have the luxury of waiting.

Deadly Interaction Between Texas Operation Lone Star and the Rule

While President Biden and Texas Governor Greg Abbott have criticized one another’s border policies in public and in the press, in practice, the Rule and Abbott’s Operation Lone Star interact to block asylum and endanger people at the US-Mexico border in Texas.

Human Rights Watch spoke to asylum seekers who reported they could not access the US port of entry because they were blocked by US or Mexican officials. The asylum seekers then tried to turn themselves in to Border Patrol agents to request asylum between ports of entry, only to be prevented from moving beyond the river by Texas state officials or blocked by buoys with saw blades, razor wire, or hot shipping containers. Human Rights Watch observed Texas state officials ignore families of asylum seekers, including small children, who had waded across the Rio Grande and were on US territory in search of asylum. In record heat, and even though the asylum seekers had no water or protection from the sun, Texas state officials in a motorboat drove by the asylum seekers at least six times over a period of two hours. Unable to return to Mexico where INM officials waited in SUVs, Texas officials effectively played a dangerous game of chicken with quickly dehydrating children. Despite the proximity to the Eagle Pass ports of entry, in all that time, Border Patrol never appeared.

Natalia V., a Venezuelan asylum seeker traveling with her husband, their five children (ages 0-9), and her father-in-law, told Human Rights Watch that after they were blocked from seeking asylum at the Eagle Pass port of entry by Mexican officials, they were turned back by US officials when they tried to request asylum after crossing the river next to the port of entry in September 2023.[132]

“The [Texas] soldiers yelled at us, but we couldn't cross the bridge because security turned us back,” Natalia said. “The loop was infinite. They told us to cross the bridge. We couldn't cross the bridge, and then we couldn't turn ourselves in between ports of entry.”[133]

The family waited four hours in extreme heat on the US side of the riverbank to speak to Border Patrol and request asylum.[134]

“There are people who even sleep beside the razor wire to be able to turn themselves in,” she said.[135]

OIG and CRCL should investigate whether any federal funds are misapplied by Texas State and local entities in Operation Lone Star and how CBP collaboration with Texas state officials contributes to the violation of international human rights and refugee law and US civil rights law.

*    *    *

We look forward to learning what action you have taken in regard to this matter. Some of the victims with whom Human Rights Watch spoke may be willing to speak with investigators, and in those cases, Human Rights Watch can connect your offices with those individuals. Thank you for your time and attention.

Sincerely,

Ari Sawyer
US Border Researcher
Human Rights Watch