Judge rules that metering is illegal—09-03-21

Immigration news, in context

This is the ninety-fourth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we look at a recent federal court ruling holding border metering to be illegal.

  • In Under the Radar, we examine the needs of Afghan refugees.

  • In Next Destination, we break down a couple of Illinois counties’ legal efforts to block a state sanctuary measure.

The Big Picture

The news: a federal judge has ruled that the metering policy sometimes applied by border officials against arriving migrants, sometimes known as “turn-backs,” violates the Administrative Procedure Act and the Fifth Amendment’s due process protections, rendering it illegal. The effort, which was never an official program but rather billed as individualized use of discretion to manage border flows, came to wide usage under the Trump administration.

What’s happening?

The rulings were part of a lawsuit that’s now been ongoing for four years, brought by the cross-border migrant legal assistance group and service provider Al Otro Lado and heard by U.S. District Judge Cynthia Bashant of the Southern District of California.

Much of the legal back-and-forth revolved around the basic question of whether certain rights and responsibilities don’t apply if a migrant is just outside of U.S. soil as opposed to on it, even if they’re in the process of attempting entry. The plaintiffs made several different legal claims, and the judge ultimately granted summary judgement—meaning a full ruling where it is determined that no substantive facts are in dispute, only questions of law—in favor of some and against others. Perhaps the most notable is that Fifth Amendment due process rights in this case apply to persons just outside U.S. borders.

In arguing that they did not, the government had cited Hernandez v. Mesa, a now-infamous case involving the shooting death of a 15-year-old child standing on the Mexican side of the border by a U.S. Border Patrol agent standing on the U.S. side. Prosecutors declined to pursue a criminal process against the agent, so the child’s family decided to sue him in civil court. Ultimately, the Supreme Court upheld an earlier Fifth Circuit decision which had ruled that the agent had qualified immunity and that permitting a civil suit would interfere with the federal government’s responsibilities to decide foreign policy and enforce border security. The government claimed that this decision invalidated a point of law that the court had earlier cited, but the judge did not find that the ruling’s presumption against a civil action as a remedy for “injuries incurred on foreign soil” was relevant in this case.

The government also cited DHS v. Thuraissigiam, a case we’ve discussed before in which the Supreme Court established, among other things, that “the only procedural rights of an alien seeking to enter the country are those conferred by statute” and that administrative officials acting pursuant to functions delegated by Congress are engaging in due process. The trouble is, as the plaintiffs argued, metering itself was a failure to obey federal statutes, in that the immigration laws as written by Congress require immigration agents to refer migrants to asylum processes if they claim persecution or a fear of return. In particular, the statues refer to “arriving aliens,” and this and other courts have decided that this process of arrival begins before someone physically sets foot on U.S. soil. Also, the statutes refer to the actions immigration officials should take upon these individuals’ arrival, not their second or third or fourth attempt as determined by officer discretion.

It was on this argument also that the judge summarily ruled that metering was a violation of the Administrative Procedure Act, as the government had essentially decided to create a policy to give itself discretion over a question that was explicitly answered by Congress. In general, executive authorities do have discretion to conduct rule-making and adopt internal policies to implement the laws as written, and the government here was arguing that the plaintiffs had failed to identify any specific federal policy that could have qualified as arbitrary and capricious; the contention was that metering was not actually a policy but rather an individual, discretionary action taken as part of immigration agents’ regular duties. The judge decided that this was essentially beyond the point, as every single time an agent failed to undertake their duty to process a would-be asylum seeker, they were breaking the law and violating the APA.

While these decisions collectively render the policy unlawful, the judge didn’t side with the plaintiffs on every point. A notable summary judgement in favor of the government was on the interesting legal argument that metering violated the Alien Tort Statute, which essentially vests federal district courts with the ability to rule on civil actions taken by noncitizens alleging a violation of international laws or treaties. In this case the plaintiffs argued that metering was a violation of the international principle of non-refoulement, or non-return to persecution (a concept longtime readers will be familiar with). However, the judge ultimately found that, while the principle certainly exists, it is not widely understood to start outside of a country’s boundaries.

How we got here

In 2018, the Trump administration started limiting the number of asylum seekers who could legally present at ports of entry along the border each day. Metering wasn’t a codified policy, but it was a well-documented practice. Instead of processing all asylum seekers who arrived at a port of entry on any given day, CBP officers would tell migrants that there was “no room” for them or that they were “full,” instructing them to come back on a later date. The practice became so widespread that migrants started keeping their own lists that tracked whose turn it was to present at the port. Without ever being a formal policy, metering turned a process that should theoretically take minutes or hours into one that often lasted weeks or months. 

Migrants subjected to metering were essentially stuck in Mexico until they got off the list. Some lived in shelters run by churches or other nonprofits, and thousands more lived in encampments near the port of entry. One day in November 2018, a group of migrants who had been waiting in Tijuana marched to the border in protest, but were blocked by Mexican federal police who tear gassed the crowd. 

The protest was unsuccessful. Instead of ending metering, the Trump administration implemented a series of other policies that made the ranks of migrants at the border swell to even greater numbers. In January 2019, the administration rolled out the Migrant Protection Protocols, a policy requiring some migrants from Spanish-speaking countries to wait in Mexico while their cases are adjudicated in U.S. immigration courts. Unlike metering, MPP—commonly referred to as Remain in Mexico—was official policy. But the effects were largely the same: both metering and MPP kept migrants who set out for the United States in Mexico instead, typically for an indefinite period of time. Moreover, after the implementation of MPP, a new possibly arose: a migrant could arrive at the border to ask for asylum, be subjected to metering, wait in Mexico for weeks or months before being allowed to make an asylum claim, and then be put on the MPP docket, requiring them to wait in Mexico while their case made its way through the backlogged immigration court system. If it sounds punitive, that’s because it was intended to be.

The combination of metering and MPP put migrants in serious danger. If you’re a regular reader of BORDER/LINES, you know the litany of abuses migrants forced to wait in Mexico have faced: assaults, kidnappings, robberies, and extortions were common. The encampments migrants lived in didn’t have running water, couldn’t protect migrants from the elements, and were squalid and overcrowded. The most fortunate migrants—those with the most resources, either their own or those of family in the U.S.—opted to rent rooms in apartments or hotel rooms, but even in these relatively more comfortable conditions, people were practically sleeping on top of each other. 

Unable to get into the U.S. as soon as they had hoped, some migrants made the difficult decision to try crossing between ports of entry. During the summer of 2019, a father and daughter drowned while trying to cross the border. The father, 25-year-old Óscar Alberto Martínez Ramírez, was crossing the Rio Grande with his wife and two-year-old daughter. The wife, Tania Vanessa Ávalos, made it across the river—but her husband and baby were dragged away by the current. The family had fled El Salvador that summer and intended to ask for asylum in the U.S. They were initially turned away at the port of entry and waited in Mexico for a month before attempting to cross between ports. After the father and daughter’s death, VICE News’s Emily Green reported that the family decided to cross the river after being extorted while waiting in Mexico.

Migrants are no longer being metered at the border, but the conditions on the ground remain largely unchanged. As we’ve discussed in iteration after iteration of this newsletter, the current policy at the border is to categorically deny entry to most asylum seekers on public health grounds. This policy, called Title 42 after the section of the U.S. Code that authorizes it, has been in place since March 2020. In practice, some migrants are turned away while others are let in. There’s a sort of system in place, but it’s a Byzantine one that not even experts fully understand. After Biden took office, the administration reached a deal with the ACLU: it would allow immigrant rights organizations to identify the most vulnerable migrants in Mexico; the service providers would then pass those migrants’ information to the ACLU, who would pass it on to CBP, which would in turn admit a trickle of pre-approved migrants each day. This practice, which ended this summer just as the Biden administration backtracked its plan to lift Title 42, was a complex form of metering that essentially forced organizations dedicated to helping migrants to decide which migrants could enter the U.S.—and which would have to wait in Mexico indefinitely, until Title 42 is lifted.

It’s important to note that many migrants waiting at the border don’t know the specifics of which policy or informal practice is making them wait. For migrants stranded in Mexico for months on end, the reality is that subsequent presidential administrations have taken several interlocking measures to prevent them from ever reaching U.S. soil and making an asylum claim.

What’s next?

Nothing is happening immediately, and metering as a policy has to an extent been eclipsed by new restrictions, most significantly Title 42. In that vein, Judge Bashant specifically asks the parties to provide additional briefs on both a potential remedy to her finding that metering is illegal, and how such a remedy might interact with Title 42, to be handed in by October 1. The most obvious remedy would be to simply prohibit border officials from turning people away if they claimed an intent to apply for asylum; this would, of course, be kind of pointless in the context of a federal rule that is currently being used to quickly and summarily expel migrants regardless of their intent to seek protections. 

It might in the long run be significant to have specific case law explicitly pointing out that migrants arriving at the U.S. border to seek humanitarian protections have full Fifth Amendment due process protections even before they enter the country. As we’ve noted recently, the potential reinstatement of MPP along with the continuation of expedited removal and Title 42 have created a patchwork of confusing systems interlocking to exclude and confuse humanitarian migrants. Perhaps a decision holding at least that agents have a responsibility to uphold their due process rights even while arriving at the border could come into play in further litigation.

More specifically, the ruling at least means that in periods of increased humanitarian arrivals, U.S. border officials won’t be able to simply turn someone away without taking any other official action. They will either have to process people into the country or lean on one of these other programs to try to remove them, and they all have the potential to be struck down or modified.

Under the Radar

Afghan refugees face resettlement hurdles

While earlier waves of Afghan refugees were those with already-approved Special Immigrant Visa (SIV) designations, or at least SIV applications in advanced stages of processing, thousands of newer arrivals are Afghans at very early stages of visa applications or have none in process at all, and are arriving via the humanitarian parole program. They will need substantial legal assistance, and all the refugees require funds, logistical help, and volunteer orientation to get set up.

According to CBS News, around 20,000 Afghans were being housed at various U.S. military bases as of Wednesday morning. They will likely end up in states around the country, where local resettlement infrastructure was decimated during the slowdown in refugee arrivals that took place during the Trump administration and most of the early months of Biden.

Among the challenges is securing affordable housing, helping new arrivals navigate programs like Medicaid, food stamps, obtain driver’s licenses and social security numbers, and find work and community. While the first objective was to get them out and get them to safety, there are significant capacity challenges that the national web of refugee organizations are facing.

Next Destination

Two Illinois counties sue state over law limiting cooperation with ICE

McHenry and Kankakee counties have filed a lawsuit against Illinois Attorney General Kwame Raoul in response to the Illinois Way Forward Act, a bill that limits the degree to which local law enforcement can cooperate with federal immigration agencies and could potentially lead to the closure of some of the state’s immigrant detention facilities. The counties claim that the law violates both the state and federal constitution, the Daily Herald reports

Per the Herald, the law as written requires ICE to transfer detainees currently held in Illinois to facilities in other states, or to release them pending their court dates. Both counties also claim that the law would “have a detrimental effect” on county revenue, as they both receive funds from the federal government to house detainees for the U.S. Marshals Service and ICE. However, some board members in McHenry County say that the revenue generated by holding federal immigration detainees is minimal. 

Local and state governments across the country have been reevaluating their relationships with ICE in recent years. Earlier this year, New Jersey took steps to close its ICE detention facilities , some of which were run by county governments. In 2019, California passed a law that would phase out the use of private prisons and private immigrant detention facilities by 2028.

Advocates of these laws say that closing ICE detention facilities reduces the agency’s ability to hold immigrants in carceral settings. Meanwhile, opponents argue that closing immigrant detention centers in urban areas gives ICE the justification to open new facilities in rural parts of the country where immigrants have less access to legal advocates and other services. The future of Illinois’s law limiting cooperation with ICE could depend on this recent lawsuit. If successful, it could be a blueprint for conservative counties in liberal states to reduce ICE detention space.