By Luisa Gabriela Morales-Vega | Issue 26
Four years since the start of the COVID-19 pandemic, its impact on Mexican immigration policy remains significant. The implementation of migration containment measures by the Mexican government has intensified detention and imprisonment of migrants seeking international protection. The number of detainees increased from 182,940 people in 2020Â to 828,505 in 2024, while the number of people deported, however, decreased from 60,311 in 2020 to 14,888 in 2024. This shows the long duration of detention in recent years and the practice of express returns at the border without registration.
Even prior to the pandemic, the treatment of forced migrants - including migrants in an irregular situation and asylum seekers - in Mexico had worsened. The pandemic not only worsened their treatment but served as an excuse used to make certain practices permanent. Among other consequences, this also made the issuance of express decision-making asylum and legal stay in Mexico largely inaccessible.
The militarisation of migration controlÂ
In late 2018, large groups of migrants, known as the ‘migrant caravan’, began moving through Mexico. Approximately 8,000 migrants traveled together seeking safety, companionship, and strength in numbers to challenge the law enforcement authorities. In response to the migrant caravans, the governments of Mexico and the United States made several migration ‘agreements’. Mexico agreed to halt or greatly reduce the number of people reaching the southern border of the United States, not least as the US had threatened to raise tariff rates on Mexican goods. With the intention of complying with its part of the agreement, Mexico resorted to using the National Guard (NG) in immigration control functions, including participation in review and verification proceedings.Â
The NG is a police and military force established by constitutional amendment on 26 March 2019. Its regulatory law was issued a few months later and following its establishment began to carry out its functions. But this was before NG had a proper legal framework. Despite claims to have a civilian nature, in reality, it has always been commanded by military authorities. Moreover, under the most recent changes, the NG has been formally adopted into the armed forces structure. The result has been a significant increase in the arrests of migrants. NG doesn’t only conduct arrests, but NG is also in charge of guarding and monitoring immigration stations, where arrested migrants are kept.Â
Title 42 as a pathway to controlÂ
The immigration decisions made by the United States government have significant implications for Mexican immigration management. During the COVID-19 pandemic, the US migration policies were based on the enforcement of Title 42 and Title 8 of the United States Code. Title 42 is a public health regulation enforced on 21 March 2020. It was given to Customs and Border Protection because of the COVID-19 emergency. This allowed border officers to expel people at risk of spreading disease. The enforcement of Title 42 reinforced the pre-existing ‘Remain in Mexico’ programme from 2019, which made asylum seekers wait for their appointment in Mexico. Despite the Biden administration’s attempts to dismantle this regulation, the Supreme Court validated it at the end of 2021. This led to an increase in requests to the already overloaded asylum system of the United States. All of which has left people stuck in Mexico.
The migration situation in Mexico also worsened. In December 2020, the CBP One app was launched to organise the orderly arrival of individuals at the border, especially considering the large number of people located to the south of the border. At the beginning, the app could only be used within 100 km of the border in Matamoros/Brownsville and almost 3,000 km from Tijuana/San Diego. In other words, to access the app, individuals need to be present at the 19th parallel, which crosses Mexico City. In 2024, the United States government updated the application at the request of Mexico to allow for the scheduling of an appointment further south, distancing people even further from the border.
Despite the formal conclusion of Title 42, asylum offices are still experiencing high demand and considerable delays in processing. The use of Title 42 also set another precedent: in December 2023 the US closed the border again, not to prevent the spread of Covid-19, but due to the high numbers of asylum seekers at the border daily. The US imposed a condition on Mexico, stating that the border would only reopen once daily arrivals dropped to 1,500 people.
Additionally, the Lawful Pathways rule has also been implemented, further externalising the US border not only through the use of CBP One but also by establishing 'Safe Mobility Offices' in Colombia, Costa Rica, Ecuador, and Guatemala. Asylum seekers trying to reach the US are now forced to start their applications at these offices. This, in fact, immobilises them further.
Mexico’s reaction
On the Mexican side of the border, an additional aspect to consider is the systematic involvement of the armed forces in immigration control tasks. This has led to widespread documented use of racial profiling by police agents, which directly and disproportionately affects both national and foreign indigenous people. Furthermore, there are reports of abusive detention practices in the facilities managed by the National Institute of Migration, where according to the law, migrants without proper documentation are imprisoned while their immigration status is being regularised. The uncertainty that arises from these imprisonments is also due to the lack of a public registry regarding immigration detention.
Given the challenging conditions that migrants face, Mexico’s Supreme Court has issued several resolutions to counteract the restrictive and harmful policies. For example, ruling AR 388/2022 declared that detaining people for more than 36 hours is in contravention of the general constitutional mandate on detentions and ruling AR 275/2019 emphasised the necessity of training authorities involved in detentions, with a focus on human rights and a gender perspective.
However, ruling AI 62/2019Â concluded that the National Guard's involvement in immigration activities is not unconstitutional as long as it operates in a supporting role to the National Immigration Institute. This decision was based on an abstract analysis of the regulations and not on an analysis of the facts or the actions of the authorities, possibly as an attempt to legitimise the disproportionate exercise of state power.
While the first two resolutions could be seen as an important counterbalance, in my view, the immigration authorities have interpreted and applied them in a manner contrary to their intended purpose. For instance, by detaining migrants for periods exceeding 36 hours – contrary to the constitutional text – the authorities quickly deport, return, or issue a 10-day exit document to individuals without assessing their eligibility for asylum or legal stay in Mexico.
In conclusion, many of the restrictions that were put in place to address the pandemic remain in effect and continue to significantly limit mobility in the region. It is likely that these decisions will continue to be enforced as the number of people increases. Migrants and asylum seekers will face several significant consequences as a result of these decisions. These include ineligibility for asylum, being sent back to their country of origin or relocated to third countries, receiving sanctions that bar them from attempting to enter the United States for at least five years, and the potential for criminal charges. These outcomes contribute to a worsening of their vulnerabilities, increasing the risk of falling victim to human traffickers. Additionally, they face greater dangers to their lives when attempting to cross through unauthorised areas that are more remote, less monitored, and characterised by perilous geographic conditions.
Luisa Gabriela Morales-Vega holds a PhD in Law from the National Autonomous University of Mexico; currently is a tenured professor at the Autonomous University of the State of Mexico (UAEMéx). She has collaborated in teaching and research with various institutions: the Institute of Legal Research of National Autonomous University of Mexico, the National Institute of Criminal Sciences, the Federal School of Judicial Training and the Arnold Bergstraesser Institute, Frieburg. Her scholarly pursuits are as diverse as they are impactful. She is deeply engaged in Latin-American decolonial studies, constitutional critical theories, and the complex issue of forced migration among Central America, Mexico, and the US.
