The Department of Homeland Security (DHS) has been turning away asylum seekers, families, and other migrants without paperwork as they attempt to apply for entry at legal ports along the U.S-Mexico border. Migrants are then forced to wait days, weeks, or months homeless in Mexico. The policy clearly violates U.S. asylum law, which has no limit on asylum applications, and according to the DHS Office of the Inspector General, the practice results in many choosing to enter illegally. DHS Secretary Kirstjen Nielsen told Congress in December 2018 that the turnback policy—which she refers to as “metering” or “queuing”—was due to a lack of “capacity” at ports. She also denied that the agency had instituted any policies that would intentionally reduce processing migrants at ports. However,
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The Department of Homeland Security (DHS) has been turning away asylum seekers, families, and other migrants without paperwork as they attempt to apply for entry at legal ports along the U.S-Mexico border. Migrants are then forced to wait days, weeks, or months homeless in Mexico. The policy clearly violates U.S. asylum law, which has no limit on asylum applications, and according to the DHS Office of the Inspector General, the practice results in many choosing to enter illegally.
DHS Secretary Kirstjen Nielsen told Congress in December 2018 that the turnback policy—which she refers to as “metering” or “queuing”—was due to a lack of “capacity” at ports. She also denied that the agency had instituted any policies that would intentionally reduce processing migrants at ports. However, Jud Murdock, Customs and Border Protection’s acting assistant commissioner, told members of Congress in a closed meeting that same month that “the more we process, the more will come,” implying that the administration does not want to increase processing.
Murdock’s version is more plausible based on the data on port processing of “inadmissible aliens” along the southwest border—generally those without documents proving pre-approval to enter. Monthly arrivals of undocumented migrants at ports steadily rose under the Obama administration. The port arrivals more than tripled from a monthly average of 5,788 in fiscal year (FY) 2012 to a peak of 20,524 in October 2016 (Figure 1). However, since that peak, the numbers have fallen 51 percent to 10,029 in December 2018—the month when Nielsen told Congress that ports could handle no more.
While October 2016 was an outlier, several other months—both before and after it—also significantly exceeded December 2018. Every field office along the border has seen major reductions in processing numbers of inadmissible migrants. Since October 2016, Tucson, Arizona is down 37 percent; El Paso is down 41 percent; San Diego is down 49 percent; and Laredo—where the most migrants arrived in October 2016—is down 60 percent.
A steep reduction in overall arrivals of undocumented immigrants—both at and between ports—explains the initial drop-off in undocumented immigrants at ports in early 2017. But despite rising apprehensions between ports in 2018, the share at legal ports of entry has steadily declined. Under President Obama, the share of undocumented migrants processed in the southwest at legal ports doubled from average of 16 percent in FY 2012 to 31 percent in October 2016. The share then halved under President Trump from 31 percent in October 2016 to 16 percent in December 2018.
Indeed, even as DHS Sec. Nielsen repeatedly urged migrants to cross at legal ports of entry, her department had done nothing to increase processing at ports. One potential explanation is that the undocumented arrivals at ports changed in type since October 2016—in particular, more parents and children who might require more attention from personnel. In fact, December 2018 also saw 43 percent fewer families and unaccompanied children being permitted to enter at ports than in October 2016 (monthly data by type at ports of entry is unavailable before then). In October 2016, ports processed 8,330 parents and children compared to just 4,738 in December 2018.
Another explanation is that total arrivals—at and between ports of entry—were so significant nationwide (i.e. not just at the southwest border) that the system simply cannot handle the overall flow. But this was not the case. Both port arrivals and apprehensions between ports were lower than in FY 2016, down 9 percent overall (Figure 4). The overall nationwide numbers are simply insufficient to explain why southwest port “capacity” as Sec. Nielsen has described it has suddenly dropped.
Another potential issue is that CBP passes off undocumented migrants at ports to Immigration and Customs Enforcement (ICE), and ICE may not have enough detention beds to handle the arrivals. But ICE has increased its available bed space by nearly 5,000 beds (Figure 5). In other words, the capacity for ICE to receive undocumented immigrants has not diminished relative to the flow.
Development of the Metering Policy
Thanks to a lawsuit, we now know that turning back asylum seekers at ports of entry actually started in 2016 under the Obama administration. Customs and Border Protection (CBP) officers at ports of entry had already developed a policy in May 2016 of forcing asylum seekers to wait in Mexico. The Watch Commander at the San Ysidro port in San Diego told officers on May 29, 2016 “to ensure that groups that may be seeking asylum are directed to remain in the waiting area on the Mexican side.”
In July 2016, the policy in San Diego appears to have formalized with the Mexican government. Asylum seekers could only enter at either 8am or 4pm, and the CBP would only admit an undisclosed number per period. CBP’s memo of July 15, 2016 detailed the process:
In order to control the flow of asylees in their area, [Mexico] has instituted a numerical process by giving asylum applicants numbers with intake dates in the order of their arrival. The applicants are also given the locations of humanitarian shelters in Tijuana where they receive food and shelter until their intake date.
Mexican officials have since stated that their policies developed under U.S. pressure. Even still, the policy did not prevent further significant increases in port processing (Figure 1 above). In November 2016—just after the record-breaking month of October—CBP appears to have instituted the policy across all ports of entry for the first time. “If [Mexican immigration authorities] cannot or will not control the flow, your staff is to provide the alien with a piece of paper identifying a date and time for an appointment and return [them] to Mexico,” the Assistant Director Field Operations for the Laredo Field Office instructed his officers.
Whatever the case, the Trump administration restricted entries further in mid-2018. It was during this time that President Trump tweeted repeatedly about the caravan from Central America. In April 2018, Trump wrote that Mexico “must stop them at their Northern border” and “not allow them to pass through into our country, which has no effective border laws.” In June 2018, Trump tweeted, “When people come into our Country illegally, we must IMMEDIATELY escort them back out without going through years of legal maneuvering.” Throughout the year, the administration’s share of undocumented migrants processed at ports of entry fell almost continuously from 28 percent to 16 percent (Figure 2 above).
Reports Dispute Capacity Issues
There is a strange tension between the purported “capacity” complaint from the superiors and the need to instruct line officers on the ground to turn asylum seekers away. If the ports literally could not process the flow—to the point where it would require breaking U.S. asylum law by turning away asylum seekers—why would the instruction have even been necessary? The Department of Homeland Security Office of Inspector General (OIG) reported in September 2018:
CBP reported that overcrowding at the ports of entry caused them to limit the flow of people that could enter. This may have led asylum-seekers at ports of entry to attempt illegal border crossings instead… . [and] the OIG team did not observe severe overcrowding at the ports of entry it visited.
Human Rights First researchers concluded in July 2018:
The processing rooms visible in the ports of entry visited by Human Rights First appeared to be largely empty. For example, the processing room at the Hidalgo-Reynosa Bridge has nearly 100 chairs and when Human Rights First researchers and other attorneys passed through, the vast majority of the chairs were empty.
Amnesty International found in October 2018:
At the San Ysidro Port-of-Entry (POE), which is the busiest land border in the Western Hemisphere and the site of frequent illegal pushbacks, senior CBP and ICE officials informed Amnesty International that CBP has only actually reached its detention capacity a couple of times per year [Interview with ICE’s Assistant Field Office Director at Otay Mesa Detention Center, 1 May 2018.] and during “a very short period” in 2017 [Interview with CBP Field Office Director in San Diego, 5 January 2018].
In December 2018, southwest Border Patrol sectors processed five times as many undocumented migrants as CBP processed at southwest ports. It is simply inconceivable that—even if the port capacity issues were real—the agencies could not work together to bring in more at ports by having CBP turn them over to Border Patrol for processing through its apparently more robust procedures.
Congress needs to demand answers on why the Trump administration is processing half as many asylum seekers and undocumented immigrants at ports of entry than the Obama administration did in October 2018. The administration’s normal responses simply don’t explain it. The processing is far below what it was two years ago, but given that CBP has been turning back migrants since at least May 2016, it needs to explain how it has not found solutions to this problem in the meantime. The agency cannot simply suspend U.S. immigration law for years on end.
The anecdotal evidence and the statistics point in a single direction: that the government is intentionally inflating “capacity” issues in order to justify turning away asylum seekers. The culmination of this political stance is the “Remain in Mexico” policy that the administration has started to implement in San Diego, under which nearly all asylum seekers will be sent back to Mexico even after waiting under the turnback policy. This administration’s goal is what White House adviser Stephen Miller reportedly said, “I would be happy if not a single refugee foot ever again touched American soil.” Its policies are moving America closer and closer to that goal.