Federal judge strikes down Obama policy of making asylum-seekers wait in Mexico

AP Photo/Gregory Bull

U.S. District Judge Cynthia Bashant of the Southern District of California ruled against a policy of turning away asylum-seeking migrants at ports of entry due to overcapacity. Judge Bashant called the practice, known as “metering”, unconstitutional on Thursday.

Bashant is an Obama appointee, for those keeping track at home. Her appointment was confirmed in 2014, on a vote of 94-0 in the Senate. Interestingly enough, the practice of metering began with Barack Obama. The Obama administration began metering in response to a surge in Haitian immigrants arriving at the San Ysidro port of entry in San Diego. Other ports of entry began using the metering process, too. The Trump administration continued the practice and expanded it in 2018. Then, in March 2020, because of the coronavirus pandemic, border officials denied entry to almost all asylum seekers. Under Title 42, migrants were immediately turned away to avoid the spread of the virus at the border and into the United States. The Biden administration ended the Remain-in-Mexico policy implemented by the Trump administration and the Mexican government but has extended Title 42. The Supreme Court ruled last week that the Biden administration must reinstate the Remain-in-Mexico policy. So, this is where we are with a hodgepodge of policies toward migrants seeking asylum.

Metering is meant to ease overcrowding at ports of entry. Border officials turn away migrants until there is room for them to process asylum requests. Most of the migrants flooding the southern border do not qualify for asylum. We know, however, that the Biden administration supports open borders and welcomes the chaos at the border. Why else would Biden allow it to continue?

Four years ago, a lawsuit was filed by advocacy group Al Otro Lado and 13 people who sought asylum in the United States. Judge Bashant ruled that asylum seekers must be processed regardless of capacity limitations.

“After over four years, a U.S. federal court concluded what our team at Al Otro Lado has known all along, that the [Customs and Border Protection’s] turning away of asylum seekers from ports of entry and metering are illegal and violate the rights of the individuals and families most in need of our protection,” Nicole Ramos, border rights project director at Al Otro Lado, said Thursday in a statement.

In her 45-page ruling, Bashant said that under U.S. law, the government must inspect and process all asylum seekers when they present themselves at ports of entry.

The U.S. government and Al Otro Lado have until Oct. 1 to submit supplemental briefs on the appropriate remedy in the case. They must also explain how it may be impacted by Title 42. An SPLC attorney trashed CPB in its statement after the ruling.

Al Otro Lado had argued the CPB used lies, threats and coercion to deny migrants access to the asylum process.

“This decision affirms what people fleeing persecution and immigrant rights advocates have argued for years: the U.S. government’s denial of access to the asylum process at ports of entry is blatantly illegal,” Melissa Crow, senior supervising attorney with the Southern Poverty Law Center, which joined the class action lawsuit in 2018, said in a statement. “The court properly recognized the extensive human costs of metering, including the high risk of assault, disappearance and death when CBP officers flout their duty to inspect and process asylum seekers and instead force them to wait in Mexico.”

Waiting lists continue to grow. In May, there were more than 18,600 names in eight Mexican border cities. More than half of those were in Tijuana, according to the Strauss Center for International Security and Law at the University of Texas at Austin. The judge agreed with criticism that U.S. officials didn’t monitor the waiting lists and that the lists were subject to fraud and corruption. She agreed with the plaintiffs that asylum-seekers are exposed to grave danger while waiting in Mexico.

During his presidential campaign, Joe Biden called metering “disastrous”. The practice, I’ll remind you, began during the Obama-Biden administration. He hasn’t weighed in since.