Following a Spike in Migrant Deaths, a New Law Could Help Identify the Dead

It was two days before Christmas and Tony Banegas, the executive director of the Colibrí Center for Human Rights, a nonprofit based in Tucson, Arizona, was keeping one eye on his inbox while preparing to fly to Honduras to visit family. It had been a deadly year in Arizona, with files at the Pima County Office of the Medical Examiner showing the state closing in on a record for most migrant remains recovered in a single year.

Knowing that an email could arrive at any moment reporting yet another death in the desert, Banegas feared that Arizona would top its previous record. “We’ve got seven days to go,” he told The Intercept. But that wasn’t the only bit of news Banegas was expecting as the year came to an end. Inside the White House, a bill with the potential to provide relief to organizations like Colibrí had made its way to the president’s desk, and on December 31, he quietly signed it into law.

The Missing Persons and Unidentified Remains Act was a rare piece of bipartisan legislation that acknowledged the extraordinary loss of life in the borderlands while seeking to bring closure to families whose loved ones were swallowed up in the crisis. Sen. John Cornyn, a Texas Republican, introduced the bill in July. Vice President-elect Kamala Harris signed on as a co-sponsor, as did Sens. Thom Tillis, a Republican from North Carolina, and Tom Udall, a Democrat from New Mexico. The bill passed the Senate with unanimous consent in November. Companion legislation, introduced by Rep. Will Hurd, the only House Republican with a district on the border, and his fellow Texan, Rep. Vicente Gonzalez, a Democrat, passed in the House in mid-December. The legislation was presented to the White House soon after.

The new law opens up funding for the network of state and local governments, humanitarian organizations, forensics labs and medical offices that respond to migrant deaths on a day-to-day basis. It also provides for the implementation of nearly 200 new rescue beacons along the border and requires the Justice Department, U.S. Customs and Border Protection, and the Government Accountability Office to submit annual reports with a range of objectives, including disseminating data on the total number of migrant lives lost on the border and assessments of government efforts to identify and resolve the cases of the missing and the dead.

Members of the Coalición Pro Defensa del Migrante painted a graph, showing statistics of migrants who died on their journey to the United States, on the Mexican side of the U.S.-Mexico border in Tijuana on Nov. 2, 2019.

While the Border Patrol keeps its own data on migrant deaths, the numbers have repeatedly been shown to be unreliable. As a result, the work of tracking the humanitarian crisis often falls to a patchwork of volunteer groups and researchers. In Arizona, the medical examiner’s office in Tucson has played an active role in documenting migrant deaths in the state, sharing its data with the humanitarian group Humane Borders, which plots each and every case on an interactive map. The same cannot be said for Texas. Just two medical examiner offices cover the state’s vast borderlands. With rural counties overwhelmed, disturbing responses to migrant deaths have emerged in recent years, including the infamous discovery of mass graves at the Sacred Heart Cemetery in Brooks County in 2013.

Vicki Gaubeca, director of the Southern Border Communities Coalition, described the passage of the act as a “holiday miracle” years in the making. “People who are missing in the desert or who have died are not just statistics — they’re real people who have real families and should be treated with dignity and respect,” Gaubeca told The Intercept. “That’s why I think of this a little bit like a holiday miracle because it feels like the congressional members are recognizing the humanity.” Adam Isacson, director of the defense oversight program at the Washington Office on Latin America, a research and advocacy organization focused on advancing human rights in the Americas, said he was pleasantly surprised at the bill’s passage. “Whether it signals a new trend of a more humane border policy, no I don’t think so,” Isacson told The Intercept. “But it does speak to some very good activism done especially by border groups.”

By the end of 2020, the total number of recovered migrant remains recorded by the medical examiner’s office in Tucson stood at 220: two shy of the record set in 2010. The increase came amid the hottest and driest months that Arizona had ever recorded, and while many of the remains pointed to lives lost long ago, many did not. As The Intercept reported in October, more than half of the remains recovered in the first nine months of the year were the result of recent deaths.

When bodies of people suspected of dying while migrating through southern Arizona are recovered in the field, it sets in motion a process that has played out thousands of times in in recent decades. The medical examiner’s office works to establish the cause of death, while Colibrí investigates whether the deceased might be linked to one of the roughly 4,000 missing persons reports that the organization has compiled since 2006.

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Over the past decade and a half, Colbrí has identified the remains of 225 people recovered in the Arizona desert through DNA sampling, including 17 individuals this year. But that work costs money, Banegas, Colbrí’s executive director, explained. “A lot of the time all we have is bones,” he said, and bone analysis and the reporting process that comes with it is not cheap. “You’re looking at $1,500 to $2,000 for just one person,” he said. “And we have thousands.” In addition to providing the funding needed to hopefully bring some of those cases to a close, Banegas said the new law’s public reporting requirements could provide a clearer understanding of the scope of the problem.

The explosion in migrant deaths in the United States began under President Bill Clinton with the creation of border security strategy known as “Prevention Through Deterrence,” which steered migration flows away from border cities and into the deadliest and most remote terrain of the American Southwest. Since then, more than 7,800 people have died attempting to cross the border, averaging out to at least one person dying every day for the past two decades, though experts agree those figures undoubtedly undercount the true total of lives lost. “Even now, as you and I speak, there are bodies [out] there and remains on the border that have not been found,” Banegas said. “We know that.”

A member of the Baylor forensics team holds a piece of clothing found beside the body of an unidentified migrant who died crossing the border and ended up buried anonymously in a pauper’s grave in Falfurrias, Texas, on June 10, 2014.

Kate Spradley, a biological anthropologist and professor at Texas State University, noted that the passage of the Missing Persons and Unidentified Remains Act marked the first instance since the U.S. embarked on the Prevention Through Deterrence strategy more than two and a half decades ago in which the federal government recognized “massive loss of life at the border.”

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For the past seven years, Spradley’s Operation Identification project has worked to identify migrants who have died in South Texas. Unlike Arizona, “nobody tracks migrant deaths in the state of Texas,” Spradley explained. When OpID first launched in 2013, it was entirely volunteer-driven. “That was, I learned very quickly, not sustainable,” she said. Since then, the initiative has received funding through the governor’s office, but the challenge remains immense. While Brooks County has seen some of the highest numbers of migrant remains recovered on the border in recent years, Spradley noted that the “Brooks County Sheriff’s Office has one person in charge of this.”

“If we could assist them and expand these search efforts, we could find so many more people and help so many more families,” she said. “We could we could make this a bigger operation and get more done faster.” Spradley said the new law would help university-based initiatives like hers, programs focused on what she described as “the dead that are long forgotten.”

“I don’t want anybody to think that it’s going to solve the issues,” Spradley said, but she added, “It’s a first step and I think it’s a good step.”