Judge says 'metering' of asylum applicants at border is illegal

3 minute read

Asylum-seeking migrants' families wait in line while the U.S. National Guard officer unlock the gate and escort out of a private property after crossing the Rio Grande river into the United States from Mexico in Roma, Texas, U.S., August 26, 2021. Picture taken August 26, 2021. REUTERS/Go Nakamura

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  • Policy ignores duty to 'inspect' migrants upon arrival
  • Fifth Amendment applies before migrants reach U.S. soil
  • Judge hands victory to advocacy group after four years of litigation

A federal judge in San Diego has ruled that U.S. Customs and Border Protection's practice of turning away migrants at the U.S.-Mexico border once a daily cap on asylum applications is met is unconstitutional.

U.S. District Judge Cynthia Bashant said in a 45-page decision on Thursday that the practice known as "metering" violates migrants' due-process rights under the U.S. Constitution, even in cases where they are turned away before reaching designated ports of entry, or POEs.

Forcing migrants to return to Mexico and attempt to enter the U.S. at a later date creates logistical hurdles that punish individuals for seeking to enter the U.S. lawfully rather than illegally crossing the border, the judge said.

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"The risks of waiting in Mexico, often for an extended period of time, are high," Bashant wrote. "The evidence submitted shows that turnbacks resulted in asylum seekers’ deaths, assaults, and disappearances after they were returned to Mexico."

Bashant granted partial summary judgment in the 2017 lawsuit to advocacy group Al Otro Lado Inc and a group of migrants who were deterred from applying for asylum under the metering policy.

CBP, which is a part of the Department of Homeland Security, did not immediately respond to a request for comment. Nor did Al Otro Lado, which is represented by Mayer Brown, the Southern Poverty Law Center and the American Immigration Council.

Nicole Ramos, Al Otro Lado's border rights project director, in a tweet said CBP misrepresented its capacity to process asylum seekers at the border in order to implement metering.

"@CBP lied & people died, & their deaths could've been avoided had (DHS) not directed agents to disregard US federal law," Ramos said.

Metering was first implemented in early 2016 in response to a surge in the number of inadmissible Haitian nationals seeking admission at San Diego ports of entry, according to Bashant's ruling.

As the high volume of migration continued and spread to other POEs, DHS expanded the use of metering across the U.S.-Mexico border. The Trump administration continued the practice, claiming it deterred Central American migrants from attempting to make their way to the United States.

Al Otro Lado in its lawsuit said metering violated the Fifth Amendment of the U.S. Constitution by depriving migrants arriving at POEs of due process.

CBP was also violating the Immigration and Nationality Act, which says any alien who is physically present or who arrives in the U.S. "may apply for asylum," and requires immigration officials to "inspect all applicants for admission," the group claimed.

CBP countered that it was not unlawfully withholding inspection and referral duties, but merely delaying them in some cases. But the plaintiffs said that given the risks of living in Mexican border towns, turning back asylum seekers even temporarily deprived them of guaranteed access to the asylum process.

Bashant on Thursday said the INA is clear and does not give CBP the authority to put off its legal obligations. She also rejected CBP's claim that the Fifth Amendment does not apply to migrants until they are on U.S. soil, and so turning them away before they reach POEs could not be unconstitutional.

Bashant said it was not clear what type of relief is available to the plaintiffs, and ordered additional briefing on that issue.

The case is Al Otro Lado Inc v. McAleenan, U.S. District Court for the Southern District of California, No. 3:17-cv-02366.

For the plaintiffs: Stephen Medlock of Mayer Brown; Rebecca Cassler of the Southern Poverty Law Center; Karolina Walters of the American Immigration Council

For the government: Alexander Halaska and Gisela Westwater of the U.S. Department of Justice

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.