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Though the Biden administration formally ended the migrant “metering” policy at ports of entry, migrant and civil rights advocates say asylum seekers are still being turned away.
The policy was first implemented widely by the Trump administration, and it allows Customs and Border Protection (CBP) to inform asylum seekers arriving at the U.S. border that there is no capacity to begin processing their asylum requests. They are instructed to come back at a later time.
The change in policy came a month after U.S. District Judge Cynthia Bashant ruled in September that metering violates migrants' due-process rights under the U.S. Constitution and that the policy ignores the duty CBP has to inspect and process migrants upon arrival.
Kino Border Initiative (KBI), a faith-based organization that provides shelter, food and other humanitarian services to migrants, held a press conference in Nogales this week, where several asylum seekers were allowed to give testimony.
The migrants who spoke at the Nogales press conference reported requesting asylum at the Nogales port of entry on Monday, November 8. A video documenting one of the attempts provided by KBI shows a CBP officer responding to a migrant couple’s asylum request.
“Move back, please. Good morning,” says a CBP officer in Spanish in the video, emerging from behind a turnstile security gate. “I’m officer Miguel Loya. The restrictions are still in effect. So we are still not accepting asylum cases. So the only thing that has changed is that people in Mexico with Visas who are also vaccinated — they are able to cross.”
On Nov 1 @DHSgov formally ended migrant "metering" at ports of entry, but advocates say asylum seekers are still being turned away. In a video provided by @KinoBorder, a CBP officer is seen denying a request for asylum at the port of entry in Nogales earlier this week. pic.twitter.com/DGDw2DvBfL
— Pablo De La Rosa (@pblodlr) November 12, 2021
Gia Del Pino, director of communications at KBI, said the organization has observed an ongoing pattern of noncompliance to policy by CBP.
“On the ground level, you know, a lot of the abuse happens because it really is up to CBP,” said Del Pino on a call with TPR. “CBP has discretion to engage with migrants in any way that they see fit. So we don't know how it’s instituted on the ground.”
The officer in the video explains that foreign national tourists are now allowed to enter, but that the Nogales port of entry is not currently accepting asylum cases. “Nonessential” travel by foreign nationals, such as for tourism, had been restricted at U.S. border land ports since March 2020 in consideration of COVID-19. The border reopened to nonessential travel this month.
The KBI video was recorded the same day that The Department of Homeland Security (DHS) lifted those “nonessential” travel restrictions at U.S. border land ports.
Because the officer did not mention a lack of capacity to process them or request the couple to return at a later time, it is not clear if what is shown on the video could be considered metering. The officer simply informed them that asylum cases were not being accepted without specifying why.
However, there is another reason why the migrants in the KBI video might have been turned away.
While both “metering” and restricted “nonessential” travel are now both formally reversed as policy, DHS and the Biden administration continues to cite U.S. Health Code Title 42 to both turn away and expel asylum-seeking migrants at the border.
In September, DHS cited Title 42 in its immediate deportation of some 7,000 asylum seekers to Haiti. The migrant group of mostly women and children arrived at the U.S.-Mexico border in Del Rio just days earlier.
Migrant advocacy groups condemned the deportations as inhumane and illegal. Daniel Foote, the U.S. special envoy to Haiti, resigned.
"I will not be associated with the United States' inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants," Foote said in a letter addressed to Secretary of State Antony Blinken.
Days later Harold Koh, a senior legal adviser in the State Department, also resigned in a detailed legal memo.
“I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti,” the memo reads. “Lawful, more humane alternatives plainly exist.”
Notably, the “nonessential” travel restrictions, the metering and the expulsions happening under Title 42 were both started in consideration of COVID-19 safety during the pandemic.
That means the health-related restrictions for tourists and visitors are being reversed, while the ones for asylum seekers are not. At the same time, “metering” appears to continue in effect at the U.S. border even after the policy has been officially reversed by DHS.
“They’re being excluded,” said Del Pino about migrant asylum seekers. “They're being made to wait indefinitely on the border until an asylum process opens up and we have no sense of when that will happen. Advocates have no sense. Migrants have no sense. And we're just waiting. We're just waiting. It’s a limbo — it really is.”
