Asylum seeker testing migrant policy
Guatemalan man who may lose both hands to Texas frostbite is expected to remain in U.S.
WASHINGTON — Douglas couldn’t see anything — the snow was falling so fast, and there was no light.
The smuggler was long gone; though Douglas yelled and yelled, no one came. The 21-year-old and a dozen other migrants already had been wandering in the desolate desert landscape around Van Horn, Texas, for two days when the snowstorm began.
Douglas had left Guatemala a week and a half earlier, fleeing threats from gangs and hoping desperately to join his father in California, when he got caught in the historic winter storm in Texas. He’d never seen snow before.
“I wanted to die,” he said, asking that only his first name be used out of concern for his safety.
Then, out of the blackness, he heard officials telling him: “Open your eyes, open your eyes.”
When he finally could open them, he was in a hospital bed in El Paso, about 110 miles from where he was found unconscious. What he saw were his frostbitten hands: swollen to the size of baseball gloves.
Healthcare workers at the University Medical Center of El Paso told Douglas’ lawyer and his uncle Joel, who’d traveled from San Francisco, that his hands probably need to be amputated. But Border Patrol agents stationed at his hospital room said Douglas would be sent back to Guatemala once he was discharged.
A Trump-era policy in effect closed the U.S.-Mexico border to asylum seekers almost a year ago, purportedly to help stem the spread of COVID-19. President Biden has kept the controversial policy, known as Title 42.
“There is no asylum anymore,” Douglas said the border agents told him.
Linda Corchado, Douglas’ lawyer and director of legal services at Las Américas Immigrant Advocacy Center in El Paso, said that a deputy chief counsel for Customs and Border Protection, the Border Patrol’s parent agency, told her late Thursday that they’d agreed to release him from custody.
But as of Friday, his uncle Joel said, agents still were telling him he could not take his nephew. Joel asked to use
only his first name to protect against retaliation because he does not have legal status.
“They told me he had a deportation order and no right to anything,” Joel said. “I asked them to act with a little humanity.”
The White House referred The Times to CBP and the Homeland Security Department. University Medical Center did not respond.
Last week, after this article was first published online, Homeland Security officials contacted Corchado and confirmed that Douglas would not be expelled under Title 42 but would be issued a notice to appear in immigration court.
Justin Long, a CBP spokesman, said that the agency would not comment on specific cases, but “the care of those in our custody is of the utmost concern.” Title 42, he said, remains in place, and “any changes in the [Centers for Disease Control and Prevention] order are controlled by that agency.”
Late Sunday, still in the hospital, Douglas received immigration papers allowing for his release from CBP custody to California when
he is discharged.
Under Title 42, border officials have rapidly expelled hundreds of thousands of migrants, including asylum seekers and unaccompanied children, without due process. Officials with the CDC said the Trump administration pushed the order for political reasons.
Biden officials urge patience, saying that thenPresident Trump’s more than 1,000 actions to restrict immigration cannot be undone quickly. But they argue that Title 42 remains necessary, in part to discourage a surge of migrants amid the pandemic.
“It takes time to build out of the depths of cruelty that the administration before us established,” Homeland Security Secretary Alejandro N. Mayorkas said in a White House briefing Monday. “We are not saying don’t come. We are saying don’t come now.”
At the border, the Biden administration has restarted asylum processing for some of the roughly 70,000 forced back to Mexico under Trump’s “Remain in Mexico” policy. And in Washington, the administration has been lobbying for a comprehensive immigration reform
bill.
Still, each day hundreds of migrants, mostly families from Central America, are crossing the Rio Grande and being sent onward to their families to await court hearings — to the exasperation of tens of thousands of others still stranded at the border who in some cases have waited years to enter the U.S. the “right way.”
But the situation is urgent for Douglas, who says he fears both losing his hands and being sent back to Guatemala to be killed. And it’s not the first time the U.S. government has trapped him in policy limbo.
A June 6, 2017, letter from U.S. Citizenship and Immigration Services, reviewed by The Times, informs his stepmother in California that Douglas was approved for the Obama-era Central American Minors parole program, and would be scheduled for an interview.
The program enabled endangered Central American minors to apply from the region to join parents in the United States. And in one of Trump’s first moves in office, he suddenly axed the program, stranding more than 2,700 children — including Douglas.
Last month, Biden issued an executive order to take steps to restore the program, and on Monday, Mayorkas said they’ve “begun to rebuild the process” — though there are no signs of it yet.
Biden officials have instructed immigration enforcement agencies that border crossers should be regarded as “security threats,” but say they are not violating U.S. law that grants migrants the right to seek asylum however they enter, whether at ports of entry or between them.
“There’s no question that the Title 42 policy is unlawful,” said lawyer Lee Gelernt of the American Civil Liberties Union.
Critics say the Biden administration’s delay and the confusion it has created have resulted in cruelly arbitrary consequences for migrants such as Douglas, with border officials applying different understandings of the latest policy shifts.
“CBP is being inconsistent with how they’re treating these cases,” said Corchado, who is representing several clients hospitalized after crossing during the storm, as well as others quickly expelled by Border
Patrol despite serious injuries falling from the border barrier. “They’ll just say, ‘OK, you’re expelled,’ with little way for me to intervene or know what’s going on.”
When Douglas crossed the border, he was not wearing winter clothes and had no gloves — the coyote had given them no warning — leaving him with “deep” frostbite in both hands and ears, and one foot, according to hospital records.
“21-year-old male who was found after being in the snow for 15 hours,” states a Feb. 15 report. “He was with multiple other people who passed away from frostbite.”
A day later, a “progress report” states, “Ortho consult in AM anticipating need for eventual amputation.”
Border Patrol agents rescued more than 200 people during the storm, and at least four died before they were found, according to a news release from the agency’s Big Bend sector, where Douglas was picked up.
“It’s unfortunate so many people place their lives in the hands of unscrupulous smugglers,” Big Bend Sector Chief Patrol Agent Sean McGoffin said in the release.
CBP did not respond to questions about how many rescued in the storm were released or expelled. Agents have told The Times that Title 42 is pushing migrants into more dangerous crossings, and repeat attempts.
From October through February, Border Patrol conducted nearly 3,000 search-and-rescue operations — on pace to more than double the number of such operations last fiscal year and far exceed 2019, which saw far higher levels of migration.
Corchado is also representing an Indigenous couple from Guatemala who were caught in the winter weather and brought to the same hospital as Douglas, having nearly died of hypothermia. Their home was destroyed in recent hurricanes.
In the hospital, the husband described how his wife told him she couldn’t feel her heartbeat anymore, instructing him on how she wanted their kids to be raised, Corchado said. Both tested positive for the coronavirus.
At first, CBP officials indicated to the couple that they could be expelled under Title 42 once discharged. Late Wednesday, without notice to Corchado, the hospital released them, and Border Patrol agents began to walk them across the border without shoes, the husband later told Corchado. When a call came over the radio, an agent stopped and detained them instead.
A CBP supervisor said Thursday that the couple wouldn’t be expelled and their asylum claims would be considered, according to communications shared with The Times. Both have been transferred from CBP custody to Immigration and Customs Enforcement.
Douglas’ mother and grandmother didn’t want him to make the dangerous journey north, but they didn’t want him killed either, he said. The family paid a smuggler $2,000, and around Feb. 13, Douglas crossed the Rio Grande from Chihuahua, Mexico.
Douglas’ father, who does not have legal status in the United States, feared coming to the Texas hospital where border authorities held his son in custody, so Joel, who says he has a state ID issued by California and permission to work, came instead. Joel said Border Patrol prevented him from seeing his nephew for days. Both of them cried.
“It was the helplessness of already no longer being able to do anything for him, and lamenting that his trip and all that he had spent for it was in vain,” he said.
Joel was supposed to return to San Francisco late Friday, having been given only a week off work at a hotel. For now, he’s staying in El Paso with his nephew, waiting for when Douglas is discharged.
“My only thought was to see my dad — it’s the only thing that I want,” Douglas said. “I can’t go back to Guatemala. They’ll kill me if I come back again.”