In early June, Ofelia Arrellano said a gang in Mexico City threatened to kidnap her younger son if she didn’t pay a $160 monthly fee for keeping her toy store afloat.
Arellano, 37, and her two sons gathered enough money and fled. She feared the gangs’ reach if she stayed in Mexico, so they went north, towards the US, she said.
But just as they were setting out for the US-Mexico border, Joe Biden issued a new directive to curb high levels of migration into the US. When the numbers of people deemed to be crossing illegally exceeded a daily average of 2,500 for a week, he would temporarily shut down the border to most asylum requests. The clampdown has been in operation ever since.
Unaware, Arellano and her sons reached northern Mexico on 25 July and crossed through rugged terrain into Arizona in a spot where the 30ft high US steel barrier peters out. There, they waited for US border patrol agents, assuming they could exercise their rights to seek asylum.
But when agents turned up, “they told me I was going to get deported,” an anguished Arellano said.
“I told them I couldn’t go back to my country because our lives were in danger, but they said asylum was no longer an option and that I should live in a different area in Mexico,” she said, speaking from a shelter in Nogales, on the Mexican side of the border from its smaller sister city of Nogales, Arizona.
The US president’s regulation, published by the Departments of Justice and Homeland Security, is his most restrictive immigration policy to date.
In combination with Mexican authorities cooperating with the US to stop people from even reaching the border, the effect on numbers has been dramatic.
This gives Biden and now the Democratic 2024 presidential ticket of Kamala Harris and Tim Walz the capacity to hit back at Republicans’ constant and effective attack line that Democrats won’t “secure the border”.
Related: Republicans want to grill Harris for her immigration record – but what is it?
But rights advocates and some prominent Democrats are effectively asking: at what price?
Members of Congress have just sent a letter to the homeland security secretary, Alejandro Mayorkas, and the US attorney general, Merrick Garland, asking for Biden’s border crackdown to end “in its entirety”. It says the executive order “forces individuals to wait in danger while facing threats to their safety, in violation of US law and international treaty obligations”.
It was signed by 19 US House representatives, including nine from border states – Joaquin Castro, Veronica Escobar, Sylvia Garcia and Greg Casar of Texas, Raúl Grijalva of Arizona and Juan Vargas, Robert Garcia, J Luis (Lou) Correa and Nanette Barragán of California – as well as Alexandria Ocasio-Cortez, Rashida Tlaib and Cori Bush of the Squad and Pramila Jayapal, chair of the Congressional Progressive Caucus.
It said Biden’s regulation “mirrors an earlier asylum ban issued by the Trump administration”, violating legal guarantees “people fleeing violence and persecution may apply for asylum no matter how they enter the United States”.
Since 1980, when Jimmy Carter signed the Refugee Act, the US established two paths to obtain asylum: from overseas as a resettled refugee or on US soil as an asylum seeker, with legal obligations to provide protection to those escaping persecution.
Meanwhile, migrant rights groups have filed an amicus brief in the federal case where the American Civil Liberties Union (ACLU) and others are suing the government on behalf of Las Americas Immigrant Advocacy Center and the Refugee and Immigrant Center for Education and Legal Services (RAICES).
The brief says that since the new rules began, advocates have talked to people who were explicitly requesting asylum, using their domestic and international rights, who also “relayed their past persecution, explained their asylum claims, showed agents their injuries, and reported that they had visibly sobbed and begged to be heard”. But they “were ignored by US immigration officers or told they would be deported anyway”.
It added that others “have reported being unable to express their fear because officers forbade them from speaking, reprimanded them, intimidated them, or told them there was no asylum anymore”, even when, for some, a lawyer was backing them up.
The brief said that instead of referring migrants for an official “credible fear” interview with expert asylum officers or immigration judges there was “a terrifying atmosphere” for asylum seekers where, instead, border agents “verbally abused them, telling them to ‘shut up’, declaring they had ‘no right’ to an interview, or completely ignoring their attempts to communicate”.
Border patrol apprehensions of migrants in June plunged to a three-year low, continuing a downward trend that started earlier this year. Recent reports suggest migrant crossings fell again in July, reaching the lowest level since September 2020. According to officials, the executive order remains in effect until average daily unlawful border crossings drop below 1,500 for a week.
“It seems to make sense for political parties to be tough on the border right now, but what we need to be doing is ensure that asylum seekers are able to get the protection that the laws require,” said Alvaro Huerta, director of litigation and policy at the Los Angeles-based Immigrant Defenders Law Center, a party to the amicus brief.
In Nogales, Mexico, the Kino Border Initiative, a humanitarian and advocacy program and another signatory to the amicus brief, reported that of 457 people they assisted after they had been deported to Mexico in June, 345 of them reported being ignored or not allowed to ask for asylum.
“Those who verbally expressed fear or an intention to seek asylum reported being ignored outright, lied to and told that asylum was no longer an option, or threatened with prolonged detention,” the brief said.
US Customs and Border Protection (CBP) did not respond to requests for comment.
Arellano and her sons were deported from the US to Mexico in late July. She found her way to the Kino shelter and, speaking on her fifth day there as she surveyed her limited options, she said: “My final destination was Indiana, where my oldest son lives. But now we may have to go back to the place we fled from.”
The US government says: “Those ordered removed will be subject to at least a five-year bar to reentry, and potential criminal prosecution.”
Pedro de Velasco, director of advocacy at the Kino Border Initiative, said the shelter has seen a sharp increase in people coming there after being deported, with up to 80% being women and children. The group also provides food, medical and legal services to male deportees sleeping in other shelters.
De Velasco said some of the people have been coming back and forth to Kino for months, trying without success to secure an official appointment with the US authorities to request asylum, via the mobile phone app known as CBP One. The app distributes about 1,500 appointments daily to asylum seekers waiting in Mexico, nowhere near meeting demand.
On a wall of the shelter is a poster seeking to dissuade people from heading out into the wilderness as a last resort to try entering the US by evading the authorities.
“Many people have died crossing. There’s not enough water. Many people have gotten lost in the vast desert,” the poster reads.
De Velasco spelled out the wider danger.
“With no options, the government is pushing migration further away through remote areas. The cost of this policy could be human lives lost in the desert,” he said.
Humanitarian aid volunteers from the Tucson Samaritans, a group that tries to prevent migrant deaths in the Arizona desert, assisted 10 asylum seekers on a recent morning, who had crossed the border near Sasabe, a small hamlet in an unforgiving, arid landscape with scrub but few other features beyond the towering border barrier and distant mountains.
Border patrol agents eventually picked up the asylum seekers – four from Latin America, three from Nepal and three from India.
Since Biden’s new directive, though, volunteer Chris Craver said fewer people had been arriving at the Samaritans’ outpost of tents in Sasabe hoping to turn themselves in to agents to ask for asylum. There were “a lot more people saying that they should’ve crossed the desert” and tried to evade detection instead, he said.
At that moment, two men approached the border barrier from the Mexican side.
Alberto, 35, and Jesus, 36, cousins from Mexico, who asked that their last names be withheld to protect their safety, said they left Hermosillo, about 175 miles south of Nogales, because of high crime and low wages. They called through the fence, saying they were going to cross the border the next morning, through the Sonoran desert, where summer temperatures regularly exceed 100F (38C).
Related: Searching for Diego: the hunt for one missing migrant in the Arizona desert
They had water but little food, and they were hungry, they admitted, with their feet sore in worn boots after trekking through the brush. They were aiming to reach Tucson, 70 miles to the north, guided by smugglers, but were also concerned that their mobile phones were running out of charge.
Pima county, which largely covers the Arizona-Mexico border, is responsible for gathering most of the human remains recovered when migrants don’t make it. From January through July this year, the remains of 95 such travelers have been recovered, more than a third killed by heat exposure, others through drowning, falling into a diabetic coma or indeterminate causes. Sadly, that figure is typical, Greg Hess, the county’s chief medical examiner, told the Guardian.
“We have seen very little variation in relation to who does what executive order or who puts a wall here or there, that doesn’t seem to affect the deaths,” Hess said.
The climate crisis also plays a part. Hess said what the authorities are concerned about “is how hot and how dry it is out there. This has been a problem for southern Arizona since the early 2000s. The hotter it gets, more people are going to die.”
Alberto and Jesus trudged away and their fate is unclear to date. Arellano and her sons aren’t back in Mexico City, but they went to stay with a relative a couple of hours away, trying to resettle while fearing gang members will show up at their door again.
