Unlawful Turnbacks: Another Barrier to Asylum

Against a backdrop of numerous attempts to discourage or block asylum seekers, the Trump administration has employed turnbacks—first sporadically, then broadly—at the U.S.–Mexico border. This practice of refusing admittance to individuals and families who express fear or ask for protection is illegal, and it continues to obstruct paths to safety, create backlogs, and endanger lives.

In recent years, asylum seekers at the U.S.–Mexico border are encountering more and more obstacles in initiating and processing their requests for protection. The Trump administration has put in place various policies and practices that limit access to asylum. Turnbacks are one such practice, begun in 2016 under the Obama administration, as large numbers of Haitians presented themselves for asylum at several ports of entry along the southern border. Customs and Border Protection (CBP) claimed insufficient staffing and space to handle the increased number of people arriving, and so they administered what they call “metering”—delaying entry to asylum seekers and instructing them to wait their turn, although CBP never organized any process for such turns.

What began as a “pilot program” became widespread by May 2018 as turnbacks were implemented across the border, ostensibly in response to higher numbers of Central American migrants arriving. This also coincided with the administration’s “zero tolerance” prosecution policy that, among other outcomes, resulted in the separation of thousands of children from their parents. Today, the numbers of asylum seekers waiting south of U.S. ports of entry is unprecedented, and wait times are weeks or months long. Though now official policy, turnbacks are violations of U.S. immigration and international refugee laws which dictate that people fleeing persecution or violence must be given the opportunity to seek asylum. In addition, the administration’s insistence on depicting the process as an organized and necessary response to large numbers of asylum seekers obscures the reality on the ground—that metering is largely unsupervised, often chaotic and discriminatory, and incredibly burdensome, even life-threatening, to people fleeing violence and persecution.

THE RIGHT TO ASYLUM: The right to seek asylum is codified in the 1951 Refugee convention and U.S. treaties. The U.S. Immigration and Nationality Act stipulates that anyone entering or physically present in the country can apply for asylum, regardless of immigration status or manner of entry. The asylum process begins with taking the applicant into custody and scheduling a credible fear interview with an asylum officer or a court date before an immigration judge. Other immigration officials are not authorized, under any circumstances to determine credible fear, evaluate asylum claims, or turn people away. This is also covered in the Immigration and Nationality Act.

Currently, people wait months or years for a final decision, during which time the applicant may be detained and possibly separated from family, or released to family members or sponsors. In cases when asylum is granted, applicants receive a green card a year later. However, if their fear is not deemed credible or they are not granted asylum, applicants are deported to their home countries, and barred from entering the U.S. for five years. It is a severe penalty, and a testament to the gravity of their claims that asylum seekers take their chances in a system weighted against them.

Turnbacks interrupt and delay this process, and in so doing, violate both the immediate legal obligations outlined above and basic human rights. In addition, refoulement—turning people away to places where they are at risk of persecution, torture, or other harms (as Mexico is for many migrants)—is prohibited by the Refugee Convention and U.S. law. The Trump administration and CBP have acknowledged these obligations in various documents and announcements, and the House Appropriations Committee included a reminder in their report on 2019 Department of Homeland Security (DHS) funding to uphold their legal responsibilities to asylum seekers. Yet the turnback policy persists.

LIMITING ASYLUM ACCESS: The Trump administration has put forth a number of policies that constrain the right to seek asylum, and in many ways, appear to be intent on dismantling the asylum system. Here is a partial list:

• An executive order instituting an asylum ban that would allow CBP to reject asylum seekers who crossed the border between ports of entry, blocked in November 2018.
• Urging Mexican authorities to check the legal status of those waiting for their asylum appointment in the U.S., putting these refugees at risk of detention or deportation from Mexico. This is in practice in some areas along the border, and currently, Mexican immigration officers guard the entryways to international bridges crossing the Rio Grande, preventing migrants from passing through.
• Prosecution of asylum seekers for illegal entry into the U.S., in violation of U.S. and international law.
• Requiring that every asylum seeker file their request from abroad, which often prolongs their time in the very countries where they have endured persecution and violence.

In addition, oversight of CBP and Immigration and Customs Enforcement (ICE) officers is insufficient, and the current anti-immigrant environment has seemed to encourage further violations of asylum rights. There are numerous reports from advocacy organizations and migrant shelters of U.S. immigration officers (1) offering migrants false information (for example, that the U.S. is no longer accepting asylum claims); (2) being skeptical of asylum claims or making arbitrary decisions about credible fear, and turning applicants away or discouraging them from applying; and (3) filling out interview forms with misleading or incorrect information. For example, an officer might ask if an individual plans to work if they receive asylum, and designate the reason for entry as “work.” Or the officer might inquire if the individual knows what asylum is; if they answer “yes,” the officer may believe the applicant to be coached and therefore not credible, and if they answer “no,” the officer may conclude that the applicant doesn’t qualify for asylum. These abuses often go unreported due to intimidation, lack of legal counsel, or misinformation about the right to submit a complaint.

Turnbacks (i.e.,“metering,” in government parlance) are part of this trend. Though the Trump administration tells asylum seekers to report to ports of entry, they are turned away with the explanation that facilities are “at capacity.” Overall, claims that CBP and ICE are understaffed or overstretched may have some merit at particular ports for short durations. However, in the context of turnbacks across the entire border, these excuses, which hinge on characterizing the number of arrivals as too overwhelming, don’t hold up to scrutiny. CBP is the largest law enforcement agency in the U.S., and DHS operates one of the most extensive detention systems in the world. In 2018, CBP processed 1.1 million fewer entrants at the southern border than crossed in the year 2000 when the agency ran on half the budget and employed 10,000 fewer officers. Looking at recent CBP reports, “inadmissibles” (which include asylum seekers) numbered 151,562 in 2016; in 2018, they totaled 124,511, a decrease of nearly 18%. At a more micro level, at the San Ysidro port-of-entry, up to 100 asylum seekers used to be allowed entry in a single day; now it is 20. Claims that underfunding is an issue are also questionable when funds are allocated to install concertina wire on the border fence, but not for meeting the legal obligations of accepting asylum seekers.

THE ASYLUM SEEKER EXPERIENCE: For those waiting at the border, the turnback policy is devastating, not only for the immediate reasons of vulnerability to crime and risk of violence, but for the more ongoing experiences of exhaustion and despair. The wait time is indefinite, and asylum seekers have already endured violence and persecution in their homelands, the challenges and dangers of the journey, and the trauma of displacement. Now, over weeks or months, they must live in overcrowded shelters, tents, or tiny, expensive apartments; work out arrangements for meals; carry their belongings with them everywhere they go; and spending much of the day outdoors, cope with the elements. If they have children with them, the stress is multiplied. They are far from home, without the support of extended family and community, and have no safe, stable residence from which to make plans, consider options, or recuperate from each day’s strains.

Some also face discrimination and other abuses, as the migrants themselves and Mexican officers administer the ad hoc lists of their names at each port-of-entry. Mexicans, transgender individuals, and others have reported that they are turned away when they try to sign up on la lista. In some places, such as Tijuana, the turnback policy is used to prevent unaccompanied minors from entering the port. The entire process engenders further trauma, and pushes people to find other ways to cross into the U.S., often on foot through dangerous territory or, along the Texas border, across the perilous rapids of the Rio Grande by raft where several migrants have died in recent months. A DHS Office of the Inspector General report includes testimony from a Border Patrol agent that unauthorized entries between ports-of-entry rise when metering is in effect.

THE KBI AND ADVOCACY: With its location in Ambos Nogales, the KBI is on the front lines of this humanitarian crisis, spurred by DHS and CBP policies and practices. The comedor has received many more women and children in the past year, a direct result of the turnback policy. In the summer of 2018, the KBI provided a temporary shelter near the port-of-entry to house those waiting to be processed for asylum. During those months, the KBI reported 113 people waiting in line, including 48 families. and from May to July, 50–120 people were in line each day, sometimes in temperatures of over 100 degrees Fahrenheit.

These figures can be found in reports from KBI partners, and the KBI is a resource for statistics and testimonies that support various advocacy efforts as well as a current class-action lawsuit challenging the unlawful denial of opportunity to seek asylum through the practice of limiting the number of asylum seekers allowed to enter the U.S. (i.e., turnbacks). Originally filed in July 2017 and currently still in progress, the complaint was amended in October 2018 when evidence of official CBP orders to restrict asylum seeker admissions was discovered and that the policy would be applied border-wide.

In the area of turnbacks as well as other immigration issues, the KBI continues its advocacy work on behalf of migrants and asylum seekers. To join our efforts, please contact your congressional representatives to demand compliance with asylum law, and make the following requests:

• Conduct unannounced inspections of holding cells at ports of entry to verify if they’re at capacity.
• Require reports from CBP on the number of officers assigned to process asylum seekers and the number of people processed.
• Require that operational funds for CBP be contingent upon processing a certain number of asylum seekers each day.

Contact information for your elected official can be found at: https://www.usa.gov/elected-officials. Thank you for your support and advocacy!