Originally published by VOX
The center of the American asylum crisis is the El Chaparral plaza in Tijuana, which sits at the foot of the western pedestrian bridge to enter the US at the San Ysidro Port of Entry in California.
On Sunday, members of the migrant “caravan,” after a week of waiting in makeshift Tijuana shelters under poor conditions, marched up to the US side of the border to demand that the US admit them to seek asylum.
At the plaza at El Chaparral, Mexican federal police in riot formation blocked the marchers from going any farther toward the bridge. Then the march descended into chaos. Hundreds of marchers evaded and scuffled with Mexican police in an attempt to cross the border en masse. Some of the marchers threw rocks at Border Patrol agents. Agents fired off volleys of tear gas at the crowd, which included families and children.
It was nearly inevitable that tensions at the border would boil over, and that they would do so at El Chaparral. For months, it has been the unofficial “waiting room” of the United States.
At San Ysidro and many of the other official crossings that line the US-Mexico border, families who have traveled thousands of miles, fleeing poverty and violence to seek asylum in the United States, have been stopped outside ports of entry before they can set foot on US soil and trigger their legal asylum rights.
Before 2016, and in some cases as recently as six months ago, they would have had no problem and no delay. But for the last several months, the Trump administration has made a practice of limiting the number of asylum seekers allowed to enter the US each day — a policy it calls “metering.” It’s the counterpart of the Trump administration’s months-long crackdown on asylum seekers entering the US illegally — telling those who do try to come legally that there’s no room for them, and ordering them to wait.
They don’t say how long the wait will be. And there’s no official way for asylum seekers to hold their spot or secure an appointment, no guarantee that they’ll ever be allowed to cross.
And so asylum seekers wait, for days or weeks or (increasingly) months: sometimes in migrant shelters whose capacity has stretched to the breaking point, sometimes huddling together on bridges, sleeping on the street, in the cold, vulnerable to the violence they hoped to escape in their home countries.
The violence that erupted Sunday was a distress signal, a sign that the situation at the border has grown untenable. The unofficial, sometimes arbitrary processes to let people in under metering are threatening to collapse into chaos, and it’s not clear if order can be restored.
The Trump administration’s proposed solution is to legally codify the idea that asylum seekers should be held in Mexico, in limbo. On Saturday, the Washington Post reported that the administration would sign an agreement with the incoming government of Mexico that would force asylum seekers to wait in Mexico after starting the asylum process — changing the current practice of allowing them into the US to wait for their asylum claims to be heard. Dubbed “Remain in Mexico,” the new policy, if enacted, would essentially formalize what’s been happening on the ground these past few months.
The basic fact is that too many people are waiting to seek asylum “the right way” in the US. In theory, they have a legal right to it; in practice, it’s by no means a guarantee they’ll be allowed to exercise it. In the hands of a president who routinely says that all asylum seekers should turn around and go home, and an administration that has sought to radically reduce the scope of asylum, the use of metering fits all too easily into a general strategy of attempting to reduce immigration to the US.
“We’re not turning people away,” Customs and Border Protection Commissioner Kevin McAleenan declared to reporters in October. “We’re asking them to wait.”
The question is how long they can wait before it becomes functionally indistinguishable from being turned away — or before they simply get fed up with being in limbo, and take matters into their own hands.
Limiting asylum at ports of entry has gone from an emergency response to the new normal
Under US law, once someone crosses into US territory from Mexico, they have a right to ask for asylum. The US government doesn’t have to grant them asylum, but it can’t summarily refuse them and force them to return to Mexico, either.
Logistically, though, there’s a limit to how many asylum seekers CBP officials can process at once. People seeking asylum are generally held in federal custody until they can undergo a screening interview with an asylum officer, and need medical and background checks shortly after their arrival. At ports of entry, officers also have to check the papers of people coming who already have legal status and scan cars for drugs and other contraband.
Like a lot of immigration tactics Trump has used, metering — the practice of asking asylum seekers without papers to wait until ports of entry have the capacity to process them — was first instituted under the Obama administration, after an influx of Haitian asylum seekers arrived at the Otay Mesa and San Ysidro ports in San Diego in 2016.
Because there’s no official data on the use of metering, we have to rely on anecdotes and self-reporting to evaluate how common the practice is. McAleenan told reporters in October that on any given day, only three or four ports along the US-Mexico border were metering asylum seekers, and that Tijuana, where thousands of asylum seekers are waiting to cross at San Ysidro, is the only port of entry where metering is constant.
But while exact wait times are hard to pin down, reports and anecdotes from nongovernmental organizations along the border suggest that since this spring, metering has gone from a temporary measure at some ports to a near-constant state of affairs at most of the major border crossings where migrants arrive on foot.
At the port in Nogales, Arizona, for example, Joanna Williams of the Kino Border Initiative said asylum seekers were restricted from mid-May through late July, with about three families being allowed to enter a day. Metering started up again in September, with at least one week where no one was allowed to enter the port.
In El Paso (Ciudad Juarez), the American Civil Liberties Union (citing the Mexican government) said in early November that as many as 450 people may be waiting on the Mexican side to enter. (In late October, McAleenan said the line was rarely more than two dozen people.) Asylum seekers who are admitted to the US tend to say they’ve been waiting for about five days, according to the ACLU’s Shaw Drake.
In Laredo, Texas (Nuevo Laredo, Mexico), Juan Francisco Espinoza of Amar, a shelter on the Mexican side, told me in October that CBP generally allowed four to six people from his shelter to enter the port every 10 days — and that a group of African asylum seekers had been waiting for 30.
In the Rio Grande Valley, there are fewer asylum seekers waiting to get in (and they’re often not as visible), but anecdotal evidence suggests metering is common there too. At one port in Roma, Texas (Ciudad Miguel Alemán, Mexico), the LA Times reported in June that the port was closed to new asylum seekers for nine days.
The trend is visible in official statistics too.
From spring 2016 through spring 2018, trends in families entering at ports of entry and families coming between ports of entry tended to rise and fall at the same time. But in spring 2018, the trends diverged.
Across every US Border Patrol sector, the number of families — the best available proxy for asylum seekers — coming in between ports of entry has skyrocketed from May to September 2018. Across ports of entry, during that time, the number of families coming in has actually dropped.
While Border Patrol’s regional sectors don’t match up perfectly with the regions into which ports of entry are divided, the regional comparison is suggestive. In California and West Texas, families used to be more likely to enter at a port of entry than between them. Now the situation is reversed. And in both places, wait times have skyrocketed — suggesting that the difference between spring and fall 2018 isn’t that fewer people are trying to come legally, but that fewer of them are being allowed to.
In other words, the Trump administration’s stated goal — for everyone claiming asylum to come in legally — isn’t something it’s at all equipped for. In many cases, seeking asylum legally, in accordance with international and US law, is simply harder than the alternative. And those who decide to wait anyway are in limbo, with no one willing to take responsibility for them.
Even the most orderly port, in Tijuana, is stretched to the breaking point
Tijuana is the most appealing destination for asylum seekers traveling northward to the US for two reasons. It’s relatively safe, because the routes to the US aren’t as tightly controlled by criminal organizations and the city itself isn’t as dangerous as Ciudad Juarez. It also has migrant shelters with capacity for hundreds of people.
But capacity for hundreds, as the past few days have shown, isn’t nearly enough. There are currently approximately 4,700 Central Americans in a temporary shelter in a converted sports complex, and authorities estimate thousands more will come in the next few weeks.
There isn’t a physical line for those waiting at Tijuana. Instead, there is a notebook, supposedly managed by asylum seekers themselves (likely with the behind-the-scenes help of the humanitarian arm of the Mexican immigration agency).
When an asylum seeker first comes to the port, as a Venezuelan woman did with her family when I was there in October, she presents her information to an organizer bearing a clipboard, who copied down key data points. Next to the organizer with the clipboard on my visit was another with a large black guestbook, the binding worn away to nothing, with names and nationalities clearly written out and numbered in groups of 10.
Once CBP has settled on a number of people to admit that day, it tells its Mexican counterparts, who tell the shelters and the keepers of the notebook. Twice a day, in early morning and mid-afternoon, they’ll read aloud the numbers of the people who will be allowed to enter the US.
The notebook system, which is unique to San Ysidro, has hardly been a firm guarantee of asylum seekers’ rights or well-being.
There have been complaints of discrimination against people of certain nationalities, and instances in which people are turned away and can’t find anyone to give their information to. LGBTQ migrants, in particular, are at risk in Tijuana — LGBTQ members of a caravan last spring faced harassment from police and attacks by armed robbers as they waited to be allowed to enter.
And, of course, because the US government doesn’t officially acknowledge the notebook’s existence, there’s no US protection available for those who miss their names being called. (This also means that if the US and Mexico were to agree to a “Remain in Mexico” policy, it would apply to everyone currently waiting in Tijuana — even if their names have been in the notebook for months.)
But it was at least manageable — at least as long as the number of people in the notebook was only 1,000 to 2,000, and shelters had the capacity to house and feed people for six weeks or longer. While the US government officially paid no attention to the people in the notebook until they were admitted to a US port, asylum seekers, shelters, and the Mexican government were sufficient to keep order.
That simply isn’t the case anymore.
Asylum seekers who have already arrived are complaining of hunger, even as the local government protests that it hasn’t gotten the necessary funds from the Mexican national government to feed them. Mexicans have engaged in confrontational (even violent) anti-migrant protests — sometimes citing President Trump’s rhetoric to claim that the asylum seekers have already been rejected from the US and shouldn’t have bothered to try — and the mayor of Tijuana appears to be taking their side.
And as the world saw on Sunday, many of the asylum seekers have simply run out of patience to wait the months it will take for their names to come up in the notebook.
Along the rest of the border, chances for asylum are a matter of timing and luck
As fragile as the situation is in Tijuana, it is in some ways the best-organized port for asylum seekers along the border. At other ports of entry, where line-keeping systems are usually informal or nonexistent, the waits are shorter but less predictable — and often more dangerous.
In Nogales, Arizona, there is an informal list system. A “civil society actor,” says Joanna Williams of the Kino Border Initiative, keeps a list of who arrives and when. But it isn’t enough to keep people from having to stay on the bridge, often in cold and rain, for days or even weeks. The people whose names are closest to the top of the list need to stay at the bridge day and night to make sure their places in line aren’t usurped by newcomers.
“When the line doesn’t move for a week, there are people who are actually sleeping out at the port for almost 15 days because of how slow it moves,” Williams explained to me in mid-October. “It’s getting cold at night in Nogales,” she added. “Kids have been getting sick. There’s 2-year-olds, 3-year-olds.” (By early November, the pace had picked up again — with 20 people allowed in in a single day.)
East of Nogales (and the rarely trafficked border along New Mexico) is El Paso, the second-most-popular destination on the border for asylum seekers. On one day in September, 100 asylum seekers were waiting on one of the bridges between El Paso and Ciudad Juarez; hundreds more were standing on other bridges, or waiting in the city’s lone migrant shelter, in hotel rooms, or on the street.
That was before an enterprising Mexican mayor brought armed police to a bridge to clear it a couple of weeks ago — ostensibly in the name of protecting asylum seekers by sending them to shelters instead. The mayor reassured them that they’d be able to hold their places in line, according to Shaw Drake of the ACLU, and Red Cross representatives hastily collected a list of names.
Many asylum seekers didn’t trust that the list would actually be enforced. Sure enough, the next day, at another bridge into the port at El Paso, the people allowed to enter were the people first in line at that bridge — not the ones who’d given their names to the Red Cross.
East of El Paso, the situation gets harder to track. The plurality of families enter the US between ports of entry, as they did even before metering.
The eastern part of the border is much more tightly controlled by smugglers than the rest of it. That doesn’t mean that the migrants themselves are criminals, or even that they’re not legitimate asylum seekers; paying a smuggler is sometimes the safest way to get out ofMexico. But it means they’re in more danger while waiting on the Mexican side — “inside the migrant shelter, it’s safe,” said Juan Francisco Espinoza in Nuevo Laredo, “but outside, there’s violence.”
If something were to happen to waiting migrants — kidnapping for ransom, deportation by Mexican authorities — the US government would never know about it. And if the fear of something happening to them led them to give up and go back to their home countries, there would be no official record that they had ever tried to seek the US’s protection — and no recourse if the danger they were fleeing caught up with them upon their return.
The capacity issues are real. But is the administration doing everything it can to fix them?
What makes the unpredictability of the pace so frustrating is that it isn’t always clear what, exactly, is constraining CBP’s capacity to process asylum seekers — and whether the government is really doing all it can to fix the issue.
“The whole process has to be resourced,” McAleenan told reporters in October. CBP needs resources for space and officers; Immigration and Customs Enforcement needs capacity for transit, placement, detention beds, and so forth.
The clearest constraints are the holding cells available for asylum seekers, and the officers available to process them. San Ysidro theoretically has space for 300 asylum seekers, but that’s reduced whenever people have to be segregated due to disease or safety concerns (like LGBT asylum seekers). On a good day, CBP can allow 100 people in; these days it’s more like 40-60.
But detention space is not the only problem. An asylum officer needs to conduct a screening interview for any asylum seeker before she can be released or deported; having to screen every asylum seeker as soon as she arrives at the port of entry requires a lot more asylum officers than are currently available. (The government may be working to fix this; before Thanksgiving, US Citizenship and Immigration Services, which manages asylum officers, put out a request for officers to volunteer to go to San Ysidro.)
Hiring more people to process asylum seekers doesn’t solve the problem on its own either — because it doesn’t answer the question of where those people will be kept.
In theory, it’s possible to envision an investment at ports of entry that could alleviate these problems. But it’s also not clear that the Trump administration is interested in any solution that will make it easier for people to seek asylum legally in the US.
When metering became widespread this summer, DHS press officials described it as a temporary measure that would naturally end when the influx into ports slowed down. That didn’t happen, and DHS has stopped emphasizing the temporary aspect of metering.
Indeed, it’s possible that they’re reconciled to it. According to McAleenan, Homeland Security Secretary Kirstjen Nielsen “has asked for recommendations if we continue to see this trend” of increasing asylum seekers and families — “what facilities and what types of care providers should be interacting with them.”
The Trump administration, meanwhile, isn’t focusing on getting Congress to increase spending at ports of entry. Instead, it’s pushing Congress to overhaul asylum law entirely (not to mention revamping the legal immigration system, building the wall, etc.).
It sees preventing people who might not ultimately pass their asylum cases from being allowed to stay in the US as an urgent problem to solve. As the administration sees it, if it reduces the number of people released into the US, fewer people will try to come in, and pressure at ports of entry will abate.
This explains why the “Remain in Mexico” alternative is so appealing for the Trump administration — it allows the US government to save the money that it costs to process and detain asylum seekers for weeks or months, without having to release them into the US.
But from the perspective of human rights advocates, that’s exactly what makes the current situation so troubling. Accepting asylum seekers is a legal obligation, and the Trump administration can’t simply zero it out by refusing to fund it.
It’s impossible to know when “no room” is the truth — and when it’s just an excuse
CBP stresses that officers are instructed, at all times, to tell people that they will be allowed to seek asylum in the US — even if they’re being turned away for the moment.
It acknowledges, though, that those directives haven’t always been followed. Litigators, led by the Southern Poverty Law Center and Al Otro Lado (an organization based in San Diego and Tijuana), sued the administration in 2017 on behalf of asylum seekers who had been denied entry, many of whom reported they were told that under President Trump, no asylum seekers would be accepted. In October 2018, they refiled on behalf of several new plaintiffs.
“We certainly take very seriously any allegation” that an officer has unfairly denied someone the right to seek asylum, McAleenan said in October. “We’ve taken disciplinary action in some cases; we’ve retrained officers in others. We’ve found several allegations to be unfounded.”
But with the mechanics of metering so opaque, it’s tough not to wonder just how often people are being turned away even when ports have space for them.
The ACLU’s Drake saw this happen firsthand in October, when a group of Guatemalan families trying to seek asylum in the US by crossing the Paseo del Norte bridge between Ciudad Juarez and El Paso were stalled for days as CBP officers stood in their way, telling them the port was full.
Even after the ACLU got a report that the port had capacity again and should reopen, nothing changed until officers saw Drake and a colleague approach, Drake said. Only then did they turn around — allowing the asylum seekers to follow them, crossing onto US soil and accessing their right to seek asylum under US law. CBP blamed a “miscommunication.”
Stephanie Leutert of UT Austin, who’s been tracking the situation at ports of entry by looking at local community newspaper reports, noticed plenty of articles from 2017 and early 2018 in which asylum seekers reported being told they simply couldn’t seek asylum — that the new president wasn’t letting anyone in.
But right as metering spread beyond Tijuana in late spring of 2018, Leutert says, those stories disappeared. “I don’t think I have one article where they say that they’re not taking people for asylum” since the barriers went up at the limit lines, she said. Instead, officers could tell asylum seekers that they were at capacity.
Port officers aren’t hired to spend their days processing asylum seekers. But as the people coming to the US without papers have increasingly been people fleeing some form of violence — and have increasingly been children and families — processing asylum seekers has become a big part of their job, anyway. It’s not one they’re allowed to shirk: The right to asylum is pretty well ensconced in US law. Even signing a “Remain in Mexico” deal would require CBP officers to spend energy on asylum seekers.
The question is when balancing asylum as one priority among many turns into deprioritizing it — or outright trying to avoid it as a chore port officials may not want to do.
We can’t know how many people are crossing illegally because they can no longer afford to wait
Zero-tolerance prosecution of illegal border crossers was designed to pressure asylum seekers to cross into the US at ports of entry — pressure that only increased after the Trump administration announced an asylum ban for people caught crossing between ports of entry (the ban was in effect for nine days before a judge halted it).
At the same time, metering is pressuring them not to wait at ports of entry.
Those are the only two options.
Logically, it seems plausible that the bottlenecks at ports of entry have encouraged people to cross between them — the exact thing the Trump administration says it wants to stop. Asked directly whether this is a problem, McAleenan said, “I hope not.”
But internal CBP communications reveal that it’s an accepted phenomenon. An early communiqué about the caravan in October said that while the caravan would probably arrive at a port of entry, there was a risk the migrants might choose to cross illegally if they suspected metering would be in effect.
For asylum seekers who try to present themselves at a port of entry and are told there’s no room — without any list to add their names to — their options can be extremely limited.
One family Leutert interviewed had to hire a taxi driver to take them to a bridge in Hidalgo multiple days in a row; when the lawyer they were waiting for to escort them didn’t show, the driver got nervous and started insisting that they leave the bridge before it got unsafe. Because their daughter had a medical condition, the family was willing to spring for a hotel room to keep her safe while they made another attempt; the asylum seekers who wait on bridges, Leutert presumes, aren’t so lucky.
Then there are the smugglers who bring their charges to ports of entry every day for a few days, at “3, 4, 5 in the morning” to see if there’s any space, After a couple of unsuccessful efforts when the ports are metered, she says, they tell the group, “We’re not going to stay with you guys forever; we’ll cross you via the river” — between ports of entry, illegally, “‘or you’re on your own.’ And people are crossing via the river.”
“If they continue to process at these rates, it’s going to deter people,” she says. “Because people aren’t gonna want to spend four months in Tijuana in a shelter.”
That might be true even if those people have legitimate asylum claims. In fact, it might be especially true of people who want to come to the US because they don’t feel safe in Mexico — the people who belie the argument made by some Trump administration officials that any genuine asylum seeker would be seeking refuge in Mexico instead. (The “Remain in Mexico” policy would allow asylum seekers to stay in the US if they had a reasonable fear of staying in Mexico, but it could also be used to argue against granting asylum to people who agreed to stay in Mexico for months.)
The argument coming from the White House is that the overwhelming majority of asylum seekers are not just unqualified for asylum but engaging in deliberate, systemic fraud. From that perspective, there is little to be lost from throttling the number of asylum seekers allowed to enter, because most of them shouldn’t have been allowed in anyway.
But a policy that treats everyone the same way — slowly — isn’t going to only deter the unworthy asylum seekers and let through only the worthy ones. The truly desperate people are often the ones least capable of waiting on a bridge or in a shelter or hotel for months. They may even be the ones desperate enough to try to scale a fence, or form a large group, in the hopes of setting foot on US soil and claiming their asylum rights — the people the Trump administration blames for Sunday’s unrest.
“There are people who need protections, legitimate asylum seekers from Central America and elsewhere, who are arriving, who our system is not set up to identify,” McAleenan said in October. He said it as an endorsement of changing asylum policy in the US to more easily reject and deport people who would ultimately not make it through the process.
But it’s impossible to identify “legitimate” asylum seekers by forcing them to wait for an unknown period of time, with housing and food not guaranteed, in the midst of rising hostility from neighbors, in the uncertain hope of getting their name called or showing up at the right hour.
The advocates and lawyers at the border have seen firsthand the choices that this forces migrants to make. In Nogales, Joanna Williams of the Kino Border Initiative and her colleagues were particularly worried about one woman with a 9-month-old daughter. As the nights got colder, they think she might have decided to get out of line and cross between the ports of entry.
Williams thought the calculus for the woman might be something like this: If the Border Patrol caught her, at least she and her daughter would be able to sleep indoors.