CBP turned away asylum seekers, claiming they didn’t have room for them. It often wasn’t true.
On a 105-degree-day in early June 2018, three Guatemalans were stopped by U.S. Customs and Border Protection officers at the top of a bridge linking El Paso and Ciudad Juárez and told they would not be allowed to request an opportunity to legally stay in the United States.
“Right now we cannot process them. This is nationwide, as I’m sure you know. We are at capacity,” a CBP official who introduced himself as Officer Gomez told two representatives of Annunciation House, an El Paso migrant-support organization. They were accompanying a badly sunburned mother and her infant daughter, along with an unrelated teenage girl, who were trying to make their way to the Paso del Norte Port of Entry to request asylum.
At that point, about 60 people were being held in CBP cells on the El Paso-Juárez border, and more than 200 holding spaces for processing migrants sat empty, a researcher would later discover when preparing a report for a lawsuit challenging the legality of turning back asylum seekers at the border.
Eventually, the three Guatemalans were allowed to proceed to the port of entry to process their asylum claims, in large part because they had stepped past CBP officers at the boundary line and were on U.S. soil.
But another group of seven Guatemalan men were physically blocked from stepping across the border by CBP officers, including one armed with a semiautomatic rifle. (That officer was later counseled by his superiors that carrying a long gun in that situation was inappropriate, according to documents obtained by El Paso Matters.) Those men — including a father who pleaded that he had been separated from two sons who had been allowed to enter the United States a day earlier while he was blocked -— were told they would have to come back some other time.
More investigative reporting from the Freedom of Information Act lawsuit: ‘Circus is coming to town’: How the El Paso Border Patrol’s 2018 Election Day plan unraveled
The Guatemalan migrants were among the first to be snagged in a new Trump administration strategy called metering or queue management, which aimed to turn back asylum seekers before they could reach a U.S. port of entry. It was among several steps the U.S. government has used in recent years to limit access to the asylum system.
The justification used by frontline officers and administration officials was that port facilities were over their capacity for processing asylum claims, including detention space. Records obtained by El Paso Matters, along with a watchdog report and evidence presented in the lawsuit challenging metering, show that the capacity excuse often was untruthful.
“We knew, we knew, we knew (that the capacity explanation was untrue), and there was nothing that we could do about it,” said Ruben Garcia, the founder of Annunciation House, who accompanied the Guatemalan migrants on that first Saturday of June in 2018. Garcia had challenged the capacity claim that morning, saying he knew that CBP was experiencing low levels of migration in El Paso at the time.
Garcia, who helped dozens of asylum seekers enter the country legally during metering, said he was always baffled why CBP officers at ports of entries repeated capacity claims that they had to know were untruthful.
“You end up lying about it, and I’ve never understood because when it all comes out, everybody gets thrown under the bus because you were lying about it,” he said in a Sept. 22 interview with El Paso Matters. “Why didn’t you just simply say, ‘This is what’s going on. This is what’s being instructed. You want explanations, go to Washington and have them explain to you.’”
When Garcia confronted Officer Gomez on the capacity claim while trying to turn back asylum seekers, the CBP official told him: “Sir, I’m sure you know I’m following directions. And this is not even local directions.”
Stephen Medlock, the lead attorney in the California lawsuit that successfully challenged the legality of metering, said the capacity claims were a pretext for turning back asylum seekers.
“Daily (CBP) emails showed that the number of asylum seekers at ports of entry had no impact or little impact on port of entry operations. At some ports of entry, CBP officers were instructed to lie to asylum seekers about port capacity, and at others the port removed seats to lower the port’s ‘capacity’ to process asylum seekers,” Medlock said in a Sept. 23 interview with El Paso Matters. “In the end, CBP adopted a policy of turning back asylum seekers and then went looking for a justification for it.”
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Requesting asylum is a legal means of seeking entry into the United States. Asylum requires evidence that a person faces persecution or death, based on a handful of characteristics such as political or religious belief, if returned to their home country.
A federal judge in California recently ruled that it was illegal to turn back migrants trying to make an asylum claim at ports of entry, a practice started by the Obama administration on a small scale in 2016 and then used across the Mexican border by the Trump administration beginning in the spring of 2018.
El Paso capacity
CBP in El Paso has 226 short-term holding spaces for migrants and 140 for overnight or longer stays, according to documents obtained under the Freedom of Information Act. The Port of Santa Teresa has 11 to 20 spaces, and a CBP facility in Tornillo and a Border Patrol holding area at the Paso del Norte Bridge offered dozens of additional holding spots at times. The documents didn’t explain why the Santa Teresa capacity varied.
The detention capacity at El Paso area ports was among information that CBP produced earlier this month to bring an end to a two-year lawsuit brought by El Paso Matters CEO Robert Moore after Department of Homeland Security agencies failed to respond to Freedom of Information Act requests.
CBP initially blacked out information about detention capacity at ports of entry in documents it released, saying it was sensitive law enforcement information. CBP agreed to unmask the capacity numbers in documents on Sept. 13, two days before the lawsuit was to go to trial.
Agency spokesperson Roger Maier declined to respond to questions about prior claims that capacity limits necessitated the metering process, saying the agency didn’t comment on pending litigation. Although the trial in the lawsuit was cancelled after CBP agreed to provide capacity information, U.S. District Judge David Guaderrama must still decide how much in legal fees CBP will have to pay to the plaintiff’s attorneys.
CBP data shows that the El Paso Field Office, which includes ports in El Paso and New Mexico, processed an average of 64 migrants per day in fiscal year 2018 and 72 per day in FY 2019, the two peak years of the metering effort. Those figures include asylum seekers and other migrants who presented themselves at ports of entry and were declared “inadmissible” because they lacked proper documentation.
So-called “inadmissibles” are supposed to be held briefly by CBP, then turned over to Immigration and Customs Enforcement for further detention or released with a notice to appear in immigration court.
A brief history of metering
Although metering is most associated with the Trump administration, the first use of the tactic came in May 2016, during the Obama administration, according to Stephanie Leutert, a migration researcher at the University of Texas at Austin.
The first use of metering was at the San Ysidro port of entry in California and was an effort to slow crossings by a large number of Haitian migrants who had gathered in Tijuana, Leutert wrote in a report for the plaintiffs in the lawsuit challenging the legality of metering.
The first documented use of metering in El Paso was Nov. 20, 2016, Leutert found.
“During these initial turn-backs, asylum seekers arriving at U.S. ports of entry would generally cross into U.S. territory before CBP officers told them that they had to return to Mexico,” she said in the report.
Metering continued sporadically in 2017 and early 2018, after Donald Trump won the presidency.
In April 2018, a CBP official issued the first known guidance for implementing metering on a large scale, according to records obtained in the Freedom of Information Act lawsuit against CBP.
“Ports should inform the waiting travelers that processing at the port is currently at capacity and CBP is permitting travelers to enter the port once there is sufficient space and resources to process them,” Todd Owen, then CBP’s executive assistant commissioner, wrote in the metering guidance memo. He said that once inside the United States, migrants had to be processed for possible asylum claims.
Although officers were instructed to turn away migrants by telling them that ports were at capacity, that wasn’t the case on the Mexican border as widespread use of metering began.
“There’s only one port of entry at that time, for one day, that was over 100 percent capacity. So no, it was not a time of overflowing numbers at the ports,” Leutert said in a Sept. 21 interview with El Paso Matters. She reviewed CBP detention data provided to plaintiffs’ attorneys in the lawsuit challenging the legality of metering.
From May through September of 2018, CBP facilities in El Paso consistently held fewer than 100 people in detention areas built to handle more than 300, even as officers routinely turned back migrants seeking to approach ports of entry, according to data that Leutert compiled for her court report.
CBP listed its El Paso detention capacity at 306 from May through early July, the first months of regular metering, then dropped the listed capacity to 115 on July 30, 2018, a number that continued to be used through 2019, the period covered by Leutert’s report.
By late May 2018, CBP was regularly positioning officers at the top of bridges connecting El Paso and Juárez. As migrants approached, they were stopped before setting foot on U.S. soil and told that they couldn’t proceed to the port of entry for processing because the facilities were at capacity.
By the fall of 2018, hundreds of migrants were sleeping on the Mexican side of the Paso del Norte Bridge, forming a line waiting to be allowed into the United States to begin the asylum process. In November 2018, Mexican officials moved the migrants off the bridge and into shelters, which led to the creation of a list kept by the Chihuahua state government that determined when migrants would be allowed to approach a port of entry and request asylum.
By August 2019, migrants in Juárez were waiting three to six months before being allowed to cross the border and make an asylum claim, Leutert said in her report.
Metering and family separation
In April 2018, a few weeks before Owens’ metering memo, then-Attorney General Jeff Sessions announced a new “zero tolerance” policy for people who crossed the border without authorization. Sessions said children would be separated from parents who brought them across the border without documents.
At a June 18, 2018, White House briefing, then-DHS Secretary Kjiersten Nielsen urged migrants seeking asylum to go to ports of entry.
“If an adult enters at a port of entry and claims asylum, they will not face prosecution for illegal entry. They have not committed a crime by coming to the port of entry,” she said.
But Nielsen did not mention that two weeks earlier, on June 5, 2018, she had issued a memo telling port directors that processing asylum seekers was not a priority and authorizing them to reassign CBP officers to other duties.
“CBP personnel and resources that would otherwise be deployed to process inadmissible arriving aliens can focus on the detection and apprehension of narcotics and currency smugglers,” Nielsen’s memo said. CBP data showed little change in drug and currency seizures in the 18 months following the memo.
The memo was not made public until it was discovered by the Department of Homeland Security Office of Inspector General in 2020. In an October 2020 report, the watchdog agency said CBP officials did not provide the memo to investigators despite repeated requests for policies and guidance on metering. Investigators discovered the memo in a forensic email search.
Garcia, of Annunciation House, said the metering process frustrated countless migrant families who wanted to make an asylum claim at a port of entry, as Nielsen recommended. Rather than waiting weeks or months in Mexico, many wound up entering the country outside a port of entry, with disastrous consequences.
“One thing leads to another, and we saw how the metering ended up feeding Operation Zero Tolerance and the separation of the families and the taking of the children,” said Garcia, whose agency became one of four non-governmental organizations that hosted reunifications of separated families in the summer of 2018.
A judge finds that turning back migrants is illegal
In November 2017, a group of asylum seekers and a California-based NGO called Al Otro Lado filed a federal lawsuit in San Diego, alleging that turning back asylum seekers at the border violated federal statutes, the Constitution and international law.
On Sept. 2, U.S. District Judge Cynthia Bashant ruled that CBP’s turnback policy violated the 5th Amendment’s due process rights of asylum seekers and statutes requiring the processing of asylum seekers. Bashant noted in her ruling that the denial of these rights under metering sometimes had severe consequences.
“The risks of waiting in Mexico, often for an extended period of time, are high. The evidence submitted shows that turnbacks resulted in asylum seekers’ deaths, assaults, and disappearances after they were returned to Mexico,” the judge wrote.
Bashant gave attorneys in the case until Oct. 1 to recommend what remedies the court should order. She also asked the attorneys to address the impact of Title 42 on the case. Title 42 is a policy carried out by both the Trump and Biden administrations that uses the risk of COVID-19 to justify the expulsion of most migrants entering the United States, including asylum seekers.
Metering and zero tolerance were two steps taken by the Trump administration to limit access to asylum at the U.S.-Mexico border. They were followed in 2019 by “Migrant Protection Protocols,” which required most asylum seekers to remain in Mexico while U.S. courts processed their requests for asylum or other protection, and in 2020 by Title 42 expulsions.
The Trump administration, amid a huge public outcry over family separation, ended zero tolerance in June 2018. The metering policy was never formally ended, though Title 42 expulsions begun in March 2020 made metering largely unnecessary.
The Biden administration ended MPP upon taking office in January, but a federal judge recently ruled that the policy must be reinstated. President Biden has continued Title 42 expulsions, despite criticism from many of his Democratic allies who have urged him to end the practice.
Leutert said rebuilding a functioning asylum system at the border will require long and difficult work.
“The number one thing is to have just to allow for some processing at the border right now,” she said. “We’re not even where we were in 2018. At least at that point, there were people crossing through.”
Garcia said he is pessimistic about U.S. migration and asylum policy going forward.
“I’m really, really concerned. I am mind boggled by what I’m seeing from the Biden administration. Never in my wildest dreams would I have thought that this would be coming from the Biden administration,” he said.
Cover photo: A Customs and Border Protection officer blocked Guatemalan migrants from crossing the U.S.-Mexico border on June 2, 2018. The man in the orange shirt said he also was turned back a day earlier, but his sons managed to reach the port of entry that day, separating the family. (Robert Moore/El Paso Matters)