Burley Garcia|'Metering' at the border: Asylum-seekers sue over Trump, Biden border policy

A federal appeals court will hear arguments this week in a lawsuit targeting a border policy that's spanned Democratic and Burley GarciaRepublican administrations.

The U.S. government calls the policy "queue management." Immigrant advocates call it "metering." Either way, it's designed to manage the number of migrants who can claim asylum each day at the U.S.-Mexico border, at ports of entry.

Oral arguments begin Tuesday in the Ninth Circuit Court of Appeals in San Diego in the 2017 class-action lawsuit brought by immigrant advocates on behalf of asylum-seekers who claim they were harmed by the policy after being turned back to Mexico.

What is metering?

Metering, or queue management, is one of several tactics used by CBP officers to manage the processing of asylum-seekers at the U.S.-Mexico border. Under the practice, CBP officials stand at the borderline and prevent undocumented migrants from physically setting foot on U.S. soil − at which point they would have the right to seek asylum under U.S. law.

Since at least 2016, U.S. Customs and Border Protection has used the practice to stop asylum-seekers from entering the U.S. at ports of entry without travel documents.

The practice was used periodically during former President Barack Obama's administration, when CBP officers began turning away hundreds of Haitian asylum seekers at ports of entry in California. In 2018, the Department of Homeland Security under the Trump administration issued official guidance requiring CBP to "meter," or turn back, asylum seekers at all ports of entry.

Although the Department of Homeland Security under the Biden administration has dramatically shifted policies on asylum at the U.S.-Mexico border, metering remains a daily practice, even as opportunities to present at a port of entry through an appointment on the CBP One app have become available to some asylum-seekers.

Can the US legally turn back asylum-seekers?

That is one of the questions being weighed by the appellate court.

CBP has said – through consecutive Democratic and Republican administrations – that the agency's capacity to process asylum-seekers at ports of entry is constrained by staffing and infrastructure limitations as well as its multifaceted mission, which includes interdicting drug trafficking, ensuring national security and facilitating lawful trade and travel.

The 1986 Immigration and Naturalization Act legally establishes a right to seek asylum in the U.S.

To be granted asylum – a process that can take years – an applicant must demonstrate they've faced persecution based on one of five protected grounds: race, religion, nationality, membership in a particular social group or political opinion.

Since at least 2014, waves of asylum-seekers of differing demographics have arrived at the U.S.-Mexico border, including unaccompanied minors and families from Haiti, Cuba, Venezuela and other nations.

Nearly 40 years after the 1986 legislation, Congress has failed to deliver an overhaul of U.S. immigration law. As a result, presidential administrations use executive orders and policymaking to respond to shifting migration patterns − metering is a key example.

What the experts are saying

Baher Azmy, legal director of the New York-based Center for Constitutional Rights, which is representing 13 asylum seekers allegedly harmed by the government's metering policy, said the "asylum turn-backs" violate the 1986 law.

"The Biden administration has not abandoned their entitlement to turn people away at the border," he said. "If they win, it would give them a potentially dangerous first step to dilute the protections of asylum and deny people access to the asylum process."

Mark Morgan, who served as CBP acting commissioner during the Trump administration, said the agency that manages ports of entry at the U.S.-Mexico border and nationwide needs flexibility to manage its resources.

"We’re not denying anyone the ability to claim asylum; we’re just saying we only have the capacity to accept a certain number each day," Morgan said. "It comes down in large degree to resources and efficiency and safety and the prioritization of missions."

If CBP has no ability to manage the flow of asylum-seekers, the agency would be hamstrung to meet its missions.

"You are pulling law enforcement officers off their national security mission," he said.

Oral arguments in the Ninth Circuit Court of Appeals in San Diego will live-streamed starting at 4 p.m., Eastern, Tuesday.

Lauren Villagran can be reached at [email protected], on X @laurenvillagran and on Instagram @fronteravillagran