Asylum-seekers sue US over Trump, Biden border policy
A federal appeals court will hear arguments this week in a lawsuit targeting a border policy that’s spanned Democratic and Republican administrations.
The U.S. government calls the policy “queue management.” Immigrant advocates call it “metering.” Either way, it’s designed to manage the number of migrants who can claim asylum each day at ports of entry on the U.S.-Mexico border.
Oral arguments begin Tuesday in the Ninth Circuit Court of Appeals in San Diego in the 2017 class-action lawsuit brought by immigrant advocates on behalf of asylum-seekers who claim they were harmed by the policy after being turned back to Mexico.
What is metering?
Since at least 2016, U.S. Customs and Border Protection has used metering, or queue management. It means CBP officials stand at the borderline and prevent undocumented migrants from physically setting foot on U.S. soil − at which point they would have the right to seek asylum under U.S. law.
The tactic was used periodically during former President Barack Obama’s administration, when CBP officers began turning away hundreds of Haitian asylum-seekers at ports of entry in California.
In 2018, the Department of Homeland Security under the Trump administration issued official guidance requiring CBP to “meter,” or turn back, asylum-seekers at all ports of entry.
Under the Biden administration, metering remains a daily practice, even as appointments on the CBP One app have become available to some asylum-seekers.
Can the US legally turn back asylum-seekers?
That is one of the questions being weighed by the appellate court.
The 1986 Immigration and Naturalization Act legally establishes a right to seek asylum in the U.S.
To be granted asylum – a process that can take years – an applicant must demonstrate they’ve faced persecution based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.
Since at least 2014, waves of asylum-seekers of differing demographics have arrived at the U.S.-Mexico border, including unaccompanied minors and families from Haiti, Cuba, Venezuela and other nations.
Nearly 40 years after the 1986 legislation, Congress has failed to deliver an overhaul of U.S. immigration law. As a result, presidential administrations use executive orders and policymaking to respond to shifting migration patterns; metering is a key example.
What the experts are saying
Baher Azmy, legal director of the New York-based Center for Constitutional
Rights, which is representing 13 asylum-seekers allegedly harmed by the government’s metering policy, said the “asylum turn-backs” violate the 1986 law.
Mark Morgan, who served as CBP acting commissioner during the Trump administration, said the agency needs flexibility to manage its resources. Along with processing asylum-seekers, CBP is tasked with interdicting drug trafficking, ensuring national security and facilitating lawful trade and travel.
“We’re not denying anyone the ability to claim asylum; we’re just saying we only have the capacity to accept a certain number each day,” said Morgan, a visiting fellow at the Heritage Foundation’s Border Security and Immigration Center.
If CBP has no ability to manage the flow of asylum-seekers, the agency would be hamstrung to meet its missions.
“You are pulling law enforcement officers off their national security mission,” he said.