This piece originally appeared on Just Security.
On November 9, in response to a large caravan of migrants from Central America slowly traveling through Mexico towards the U.S. border, President Donald Trump’s administration issued a proclamation seeking to forbid migrants who cross the U.S. border anywhere but at an official port of entry from applying for asylum.
The move is legally questionable, and civil rights groups quickly sued to stop it. On Monday night, a federal judge issued a temporary nationwide restraining order barring enforcement of the new policy, saying it likely violated federal law. The federal asylum statute specifically says that anyone who arrives in the United States “whether or not at a designated port of arrival…may apply for asylum.” The president’s proclamation attempts to use another provision of immigration law to override this requirement—the same section he used to ban most citizens of five Muslim-majority countries from entering the United States. The temporary restraining order will remain in effect until Dec. 19, when the court will hear arguments for and against a permanent order.
The proclamation states that the prospect of members of large caravans of migrants entering illegally between ports of entry “is contrary to the national interest,” and “puts lives of both law enforcement and aliens at risk. By contrast, entry at ports of entry at the southern border allows for orderly processing.”
But even as it tells asylum-seekers they must go to a port of entry, the Trump administration has been turning them away from these very same ports for months, claiming that they are “at capacity.” According to both immigration lawyers and a report from the Inspector General for the Department of Homeland Security (DHS), this has led some migrants to attempt crossing unlawfully.
DHS claims on its website that it is a “myth” that it has turned away asylum-seekers at ports of entry, and in fact “CBP [Customs and Border Protection] processes all aliens arriving at all ports of entry without documents as expeditiously as possible…. As the number of arriving aliens determined to be inadmissible at ports of entry continues to rise, CBP must prioritize its limited resources to ensure its primary mission is being executed.”
Based on an investigation by the Project On Government Oversight (POGO)—including a review of recent court documents, government reports and statistics, and interviews—DHS’s claim is disingenuous at best. The evidence shows that the increasing wait times at ports of entry are not a function of a sudden surge of migrants, but of deliberate policy decisions by the Trump Administration to detain as many asylum seekers as possible for as long as possible.
The cumulative impact of the administration’s policies and practices is to leave migrants fleeing extreme violence and poverty in Honduras, Guatemala, and El Salvador—including a large and growing number of families with young children—trapped in vulnerable situations on the Mexican side of the border, where crime and corruption are rife.
Turned Away, Prosecuted and Separated
Human rights groups and immigration lawyers began documenting cases of asylum-seekers being turned away from the San Ysidro port of entry, between San Diego and Tijuana, in 2016. In July 2017, asylum-seekers who had been turned away from the San Ysidro and Laredo, Texas ports filed a class-action lawsuit against DHS, Al Otro Lado v. Nielsen. They alleged that CBP was “violating the law by utilizing various tactics—including misrepresentations, threats and intimidation, verbal abuse and physical force, and coercion” to prevent people from seeking asylum at ports of entry.
It was in May and June of 2018, though, that turn-backs became visible across the entire U.S.-Mexico border—around the same time that the Trump administration started separating parents from their children. CBP officers began stationing themselves at the international boundary between the U.S. and Mexico and checking migrants’ travel documents. Asylum-seekers were told that the ports were “at capacity,” and they would have to wait. The lines quickly backed up. Families spent days or weeks camped outside, relying on volunteers to provide food, water, and other necessities. In some cases, they waited on bridges without toilet facilities, where temperatures sometimes reached 100 degrees.
Taylor Levy, the legal coordinator for a shelter serving migrants in El Paso, emailed POGO on June 5 that “Everything is awful. Refusing to accept Asylum Seekers at the POEs [ports of entry] funnels them to EWI [entry without inspection], which leads to the government-sanctioned kidnapping of their children.”
Levy later submitted a court declaration describing how she witnessed CBP agents turn away asylum-seekers at a pedestrian bridge in El Paso. Levy said she heard CBP agents and supervisors give the following explanations:
“We have orders not to let anybody in. As soon as we have room, yea.” “We have an order.” “This is a policy across the border.” “There is no room for them right now. You can wait in line. Once there is room they can come in.” “They can wait until we have room for them.” “It's an order from [then-Attorney General Jeff] Sessions.”
Annunciation House, the shelter where Levy works, housed a number of separated parents after their release from government custody. She wrote in her declaration that “[m]any of these parents report that it was only when they had been turned away at the port of entry—sometimes multiple times—that they attempted to cross elsewhere and were prosecuted for unlawful entry.”
Levy described interviewing two specific parents—a Honduran father and a Guatemalan mother—who had been charged with illegal entry and separated from their three-year-old children after repeatedly trying to seek asylum at ports of entry and being turned away. She concluded, “I simply cannot believe that my government could have done this to these people.”
Michael Seifert, a strategist for the ACLU of Texas based in the Rio Grande Valley, also told POGO that the turn-backs in Brownsville started at around the same time as the “zero tolerance” prosecution policy that was used to separate families. By late May and early June, people were waiting on the bridges for up to six day. This included children. Others gave up and tried to cross the river. The “administration told them to come the right way, but they couldn’t,” Seifert said.
Seifert’s and Levy’s descriptions are consistent with a report released this October by DHS’s Office of the Inspector General (OIG). OIG inspectors found that even as officials encouraged families seeking asylum to enter through ports of entry to avoid separation, CBP agents were blocking access to the ports through a process they called “metering,” leading more people to cross illegally. A Border Patrol supervisor had acknowledged to OIG inspectors that “the Border Patrol sees an increase in illegal entries when aliens are metered at ports of entry,” and three asylum-seekers described crossing illegally only after being turned away from ports of entry.
In a written response to the OIG report, DHS acknowledged having taken “operational actions to manage the flow of asylum-seekers at Ports of Entry through the process known as ‘queue management,’” which was “undergoing pilot evaluation as directed by the Secretary of Homeland Security” in June. DHS claimed, though, that family separation and “queue management” were “separate and distinct,” and discussing them together “detracts from an accurate understanding of either issue.”
DHS’s press office did not respond to requests for details about this “queue management” pilot program, nor did DHS provide additional information about it to OIG investigators. Arlen Morales, a spokesperson for OIG’s public affairs office, wrote in an email to POGO that DHS’s written response “was the first and only time they told us” about a pilot.
She continued, “To the best of our knowledge, metering has been used on and off for a couple years. However, we do not know the details of the prior metering, such as whether it took the same form of officers standing in the middle of the bridge. Nor do we know why CBP decided to reinitiate metering when it did in 2018.”
A Dangerous Limbo at the Border
After Trump ended family separations in response to public outcry, the lines outside some ports of entry shortened or disappeared for a time, but immigration attorneys began to see disturbing new tactics to deny asylum-seekers access.
In the Rio Grande Valley, lawyers say, Mexican immigration officials began removing migrants from the bridges at CBP’s request. A petition filed with the Inter-American Commission on Human Rights in October by attorney Rochelle Garza alleges that starting in late June 2018, “for the first time ever, Mexican immigration officials…were stationed at the entryway to Mexico-Texas international bridges, demanding identification or Mexican visas from all persons seeking to cross the bridges.” Asylum-seekers who had visas to be present in Mexico were allowed to enter. Those who did not “were apprehended and detained, then either deported or warned never to return.”
An amended complaint filed last month in the Al Otro Lado case alleges that this September and October, Mexican immigration officials forced four of the plaintiffs off a pedestrian bridge at the Hidalgo-Reynosa port of entry, briefly detained them, and threatened them with deportation from Mexico. (According to one of their attorneys, Angelo Guisado of the Center for Constitutional Rights, all but one of the plaintiffs named in the case have been allowed to enter the United States since the complaint was filed.)
One of the Al Otro Lado plaintiffs, whom the complaint calls “Maria Doe,” is a Guatemalan citizen with legal permanent residence in Mexico. She and her children fled her abusive husband, who was affiliated with a drug cartel. The family was turned away from the Laredo port of entry on September 10, and then attempted to cross at the Reynosa-Hidalgo port accompanied by an American lawyer. Mexican officials forced them off the bridge twice, and threatened to destroy Maria’s identity documents and revoke her permanent residency in Mexico.
Asylum-seekers waiting in Mexico also face the threat of violence and kidnapping by gangs and cartels. The situation is particularly bad in the Rio Grande Valley. The U.S. State Department has issued a “do not travel” warning for the Mexican state of Tamaulipas—the same warning it issues for countries that are active war zones. The State Department urges U.S. citizens to “reconsider travel” to most other Mexican border states. Cartels often specifically target migrants for kidnapping, demanding ransom from family members. Migrants who cannot pay are sometimes killed. Notoriously, the Zetas cartel massacred 72 migrants in San Fernando, Tamaulipas in 2010, and at least 193 bodies were found in mass graves in the same city in 2011.
Tijuana is less dangerous than the Rio Grande Valley, but the wait at the port of entry can be even longer—up to four or five weeks. Asylum-seekers are placed on an informal waiting list that is kept in a notebook, which is managed by asylum-seekers in coordination with Mexican immigration officials. Two of the Al Otro Lado plaintiffs were handed pieces of paper with the numbers 919 and 1013 on them, and told those were their numbers on the list. Guisado, the attorney, described migrants’ situations outside the San Diego port as ranging from “tenuous to harrowing.” There are shelters, but male and female family members cannot stay together there, and “cartels monitor who go in and out of a shelter,” Guisado said.
In an interview at the end of August, Joanna Williams, the director of the Kino Border Initiative, said that since mid-July the wait times outside the port of entry in Nogales, Arizona had shortened considerably. But the lines started growing again the week of our interview, and by early October, Williams told the Arizona Republic that they had reached three weeks: “We've had maybe one or two families processed max a day. And almost all of last week, there was not a single family processed.” This was in contrast to early August, when CBP was processing 10 to 15 families a day.
Delays have only increased at ports all along the border this fall.
Near El Paso, approximately 100 migrants were camped out on the Paso del Norte bridge as of early November waiting to be processed. Mexican authorities recently removed them to a shelter at CBP’s request.
Kennji Kizuka, a researcher for Human Rights First, tweeted on November 8 that CBP was “allowing only 3 asylum seekers daily into Calexico port,” while over 200 waited in shelters on the Mexican side of the border. His colleague Alyssa Isidoridy said that at the San Luis port, near Yuma, Arizona, about 50 families were camped out in makeshift tents, and CBP was processing only one or two families a day.
Kizuka and Isidoridy encountered sick children at both ports: a four year old who began vomiting while researchers interviewed his mother near Calexico, and a nine-month-old infant with bronchitis at San Luis.
These delays were occurring before the president’s new proclamation went into effect, when the large, well-publicized migrant caravans were hundreds of miles from any port. The lines are likely to increase dramatically in the weeks ahead.
Lack of Capacity, or a Slow Lane for Seeking Refuge?
A CBP spokesperson emailed a statement to POGO that read:
“CBP processes undocumented persons as expeditiously as possible without negating the agency's overall mission, or compromising the safety of individuals within our custody…. No one is being denied the opportunity to make a claim of credible fear or seek asylum.”
CBP did not respond to multiple follow-up inquiries.
Immigration advocates are extremely skeptical of DHS’s claims of lack of capacity. Taylor Levy, the attorney from El Paso, wrote in her court declaration that “it was especially infuriating to be told by the agents that there was no space to process these people when I knew personally from my work with Annunciation House that this was simply not true.”
Michael Seifert said that when he and his colleagues in the Rio Grande Valley ask DHS for an explanation for the delays in processing asylum-seekers, they generally “don’t answer the phone.” When they did speak to agents, Seifert said, the response was “ping pong,” where officials at the ports attributed the delays to policies from Washington, D.C., and officials in Washington blamed local conditions at the ports of entry on the border.
Joanna Williams said she received shifting explanations for lines at the port of entry in Nogales. Officers had said that the Nogales port was understaffed and needed to devote more resources to drug seizures. At other times, CBP attributed the delay to a lack of space in Immigration and Customs Enforcement (ICE) detention facilities, but “ICE has claimed the opposite” and said the delays were due to CBP. “The two agencies are pointing fingers at each other,” Williams said. It is clear to her, though, that “they don’t see asylum-seekers as as high of a priority” as in the past.
DHS statistics do not show any sudden increase in people coming to ports of entry without documents that could explain the long lines on the bridges that started this May. In fiscal year 2018 (from October 1, 2017 to September 30, 2018), a total of 124,511 inadmissible individuals were processed at ports of entry along the U.S.-Mexico border. This was only a small increase from the 111,275 processed in fiscal year 2017 and the 114,727 processed in fiscal year 2015, and was lower than the 151,562 who came through the ports of entry in 2016.
There was also no evidence of a surge in inadmissibles in May and June of 2018 that would explain DHS’s decision to pilot-test “metering” across the southwest border; in fact, there was a decrease from the months immediately before.
It is possible that a large group of asylum-seekers simultaneously arriving at a single port, which would not necessarily be apparent in monthly statistics, could cause temporary capacity issues. But that would not explain the sustained, border-wide delays in processing that attorneys have routinely observed.
It is also important to note that asylum seekers are, and have always been, a small fraction of total traffic at U.S. ports of entry. For example, San Ysidro, according to the General Services Administration, “is the busiest land border crossing in the Western Hemisphere,” and processes “an average of 70,000 northbound vehicle passengers and 20,000 northbound pedestrians per day.” CBP has been accepting between 40 and 100 asylum seekers daily for processing according to recent press reports.
If there is not a dramatic influx at the ports of entry, what explains increasing delays for asylum seekers? Two government reports suggest one potential issue may be that the holding cells at ports of entry are full—and they are full more often because of the Trump administration’s changes to immigration enforcement.
The Inspector General’s report on family separation said that OIG “did not observe CBP turning away asylum-seekers while there was available space,” and noted that there was “limited” detention capacity, especially for families and children, at the ports. OIG found that “[d]epending on who is being held on a given day and the configuration of the hold rooms, the facility can reach capacity relatively quickly. At one port of entry the OIG team visited, CBP staff attempted to increase their capacity by converting former offices into makeshift hold rooms.”
A Congressional delegation that visited the Brownsville-Matamoros port of entry also noted the use of offices as holding cells. CBP officers told Congressional staff that “they are processing legal asylum claims as quickly as ICE…can pick up the individuals or families,” but “[i]f the Port cannot transfer the individual or family, then the line quickly backs up.”
DHS generally detains individuals fleeing persecution at least until they pass an initial interview by an asylum officer, known as a “credible fear” screening. Asylum seekers are first detained by CBP in either holding cells located at ports of entry (if they come to a port), or border patrol stations (if they turn themselves in to or are caught by the border patrol), and then transferred to longer-term detention facilities operated by ICE.
As a result of the Trump administration’s opposition to “catch and release,” ICE is detaining more people than ever before, including an increasing number of asylum seekers. The agency reported to Congress in October that it was detaining an average of 44,631 people per day—about 10,000 more than was typical during the last fiscal year of the Obama administration. The U.S. government is also detaining a record number of unaccompanied migrant children in shelters run by the Department of Health and Human Services (HHS) because of policy changes that have slowed releases from shelters. According to the New York Times, the number of migrant children in shelters quintupled over the last year, to over 13,000 as of September 30.
As HHS shelters and ICE detention centers have filled, CBP has held people in its custody for longer and longer periods before transferring them. CBP detention cells, whether they are located at ports of entry or at border patrol stations, are not designed to hold people overnight. Most are either concrete boxes or chain link cages, with no furniture other than concrete, metal, or wooden benches. Detainees commonly call the CBP cells “hieleras,” meaning freezers, or “perreras,” meaning dog kennels. Medical care is minimal or nonexistent, and detainees do not receive sleeping mats or bedding other than a mylar blanket.
CBP policy states that detainees should “generally not be held for longer than 72 hours in CBP hold rooms” or detention facilities. For minors, this limit is legally binding—but the OIG report found that it was repeatedly violated while family separations were in effect. OIG documented at least 564 cases in the Rio Grande Valley and 297 cases in El Paso where children were held in Border Patrol custody for longer than 72 hours, and one case where the Border Patrol detained a child for 25 days.
Immigration advocates have also observed an increase in the time their clients spend in hieleras more recently, including parents with children. Kennji Kizuka, the Human Rights First researcher, emailed POGO that he had interviewed four fathers at an ICE family detention center who had been held with their children in hieleras for five to 10 days in mid-September. Similarly, an Arizona newspaper reported that advocates in a Tucson shelter were receiving families who had been in Border Patrol detention for 10 days. Local 1929 Border Patrol Union in El Paso told a news station that their detention facilities were holding three times the number of detainees they were meant to, contributing to outbreaks of chicken pox and other diseases.
But while DHS’s hard-line detention policies are leading to real overcrowding, turning asylum-seekers away from ports of entry does not solve the problem. Based on the reports referenced above, Border Patrol detention facilities seem to be at least as crowded as CBP holding cells near ports of entry. More asylum-seekers cross the border than present themselves at ports, and are processed into the same ICE detention facilities (for adults) and shelters (for unaccompanied minors).
The Trump administration acknowledges that its new restrictions on asylum are likely to increase the backlog at ports of entry. According to regulations issued with the proclamation, “aliens would likely face increased wait times at a U.S. port of entry, meaning that they would spend more time in Mexico.” The regulations state that Central Americans “appear highly unlikely to be persecuted on account of a protected ground or tortured in Mexico,” and therefore it is reasonable for them “to be subject to orderly processing at ports of entry that takes into account resource constraints at ports of entry and in U.S. detention facilities.”
The government does not acknowledge that the resource constraints on processing are, to a large extent, created by the government’s own detention policy. Nor does the Trump administration recognize the likelihood that migrants will face harsh or inhumane conditions as they wait for “orderly processing.” It cites no evidence for its claim that Hondurans, El Salvadorans and Guatemalans can safely wait in Mexico. It does not address the travel warnings the U.S. government has issued for Mexican border regions or the evidence that migrants are particular targets for cartels in those areas.
The large caravan that began in mid-October in Honduras traveled to Tijuana rather than the much closer ports in Tamaulipas to avoid being targeted by cartels. At press time, they were still arriving, to a city whose shelters were already over capacity. City officials opened an emergency shelter in a local sports complex with mattresses for 360 people, but some members of the caravan camped out on a beach near the border on the night of Wednesday, November 14. They were surrounded by Tijuana residents chanting for them to leave, including members of a vigilante group that is organizing and making violent threats on social media. Another group of anti-migrant demonstrators confronted riot police guarding the city’s emergency shelter on November 18. Meanwhile, the waiting list to apply for asylum at San Ysidro has reportedly grown to 3,000 people.
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