US Border Officials Told Asylum-Seekers They Didn't Have Space, Regardless Of Whether They Actually Did

"We observed CBP officers telling aliens the port was at capacity and did not have the capability to process them, regardless of actual capacity and capability at the time."

Authorities in the United States who turned away asylum-seekers at official border crossings told immigrants they didn't have space to process them, regardless of whether they actually could, according to an unpublished inspector general's report obtained by BuzzFeed News.

The report was later released after this story was first published.

The Department of Homeland Security's Office of Inspector General report focused on the agency's practice of regulating how many immigrants border agents could allow to enter the US to seek asylum, known as queue management, or "metering." In 2018, after learning that Customs and Border Protection agents could turn away 650 immigrants every day if all ports of entry instituted the practice, Kirstjen Nielsen, the former homeland security secretary, instructed all ports to implement metering.

Seven official border crossings that are classified to process all immigrants subsequently stopped processing asylum-seekers, and CBP agents redirected them to other ports, some of which were more than 30 miles away.

"We observed CBP officers telling aliens the port was at capacity and did not have the capability to process them, regardless of actual capacity and capability at the time," the report states.

At two ports of entry, CBP left holding cells empty despite a line of immigrants and asylum-seekers waiting in line to be processed, inspectors reported.

The OIG also said that contrary to federal law and agency guidance, at least four CBP ports of entry sent asylum-seekers already on US soil back to Mexico. The four ports of entry established their "limit lines," where CBP officers instruct asylum-seekers to go back to Mexico, on the US side of the border.

The findings follow previous reporting that contradicted claims from DHS that "metering" was necessary due to a lack of resources to process asylum-seekers.

The report said "metering" has been in place along the southern border since at least 2016 when the Obama administration and Mexican officials stopped asylum-seekers from reaching US soil and put their names on a waiting list in response to a surge of Haitians arriving to Tijuana. It became standard practice under the Trump administration.

Advocates have long criticized "metering" because it made immigrants wait for weeks or months to request asylum in border cities where they were attacked or kidnapped in some cases. In the years since "metering" took hold, that wait time south of the border has been increased (sometimes more than a year and currently indefinitely because of the coronavirus pandemic) by a Trump administration policy that makes immigrants wait in Mexico while their cases are completed in the US in some of the most dangerous cities in the Western Hemisphere.

In April 2018, the Trump administration announced a "zero tolerance" policy at the border that required CBP to refer every adult who entered the US illegally for prosecution. That policy led to the systemic separation of families at the border because children couldn't go with their parents who were being detained by the US Marshals after being charged with illegal entry.

After implementing the policy, Nielsen urged immigrants to enter the US at a port of entry versus crossing illegally.

“As I said before, if you’re seeking asylum, go to a port of entry. You do not need to break the law of the United States to seek asylum," Nielsen told reporters on June 18, 2018.

Yet at the same time, DHS and CBP directed these ports to assign staffers away from processing immigrants, including asylum-seekers, to other duties, the watchdog report states.

On June 5, 2018, Nielsen signed a memo authorizing port directors to establish metering at official border crossings. The memo also authorized port directors to reassign staffers away from processing undocumented immigrants.

"CBP personnel and resources that would otherwise be deployed to process inadmissible arriving aliens can focus on the detection and apprehension of narcotics and currency smugglers," Nielsen's memo stated.

Weeks later, when reporters told Nielsen that asylum-seekers were being turned away at ports of entry, the report states, she called the accounts "incorrect."

"While DHS leadership urged asylum seekers to present themselves at ports of entry, the agency took deliberate steps to limit the number of undocumented aliens who could be processed each day," the report said.

In response to a draft of the report, CBP told the OIG it mistakenly compared holding capacity to operational capacity. CBP's ability to detain immigrants depends on factors other than space such as the ability of ICE to transfer immigrants out of its border facilities and available resources to safely process people.

CBP also said its ability to process undocumented immigrants also depends on other demands at the ports of entry, including encounters with people who have criminal ties, volume of trade, and detection of contraband.

According to the OIG report, CBP did not concur with the watchdog's agency's recommendation to resume processing undocumented immigrants at the seven ports of entry that are currently redirecting them to other ports.

"It is important to note that it is not within OIG's mission or authority to provide legal advice to the department," CBP said. "It is also inappropriate for the OIG to infer that the department must act in accordance with OIG's conclusions."

Following Nielsen's memo the number of immigrants and asylum-seekers waiting in Mexico at ports of entry increased dramatically, the report said, and CBP didn't allocate additional resources to increase its ability to process them.

In response to an Oct. 18, 2018 email reviewed by DHS OIG suggesting ways for border officers to mitigate the growing number of immigrants, a CBP executive told his staff that expanding the operating hours of ports was “too resource intensive just to help the migrants.”

"We might consider adding officers when the port is closed to help secure against breeches [sic], but don’t want to add extra hours to process more migrants," the CBP executive said in the email.

The practice of "metering" is the subject of a federal lawsuit by Al Otro Lado, a binational legal services provider, and other groups.

Nicole Ramos, the Tijuana-based director of the Border Rights Project for Al Otro Lado who focuses on refugees seeking asylum in the US, said the inspector general's findings are consistent with what her organization has seen for years.

"CBP officers and officials at DHS lie about capacity in order to prevent asylum-seekers, the vast majority of them who are Black and brown, from being able to make their claim," Ramos told BuzzFeed News.

There is no person on earth who could reasonably believe the US government — with all its agencies tasked with humanitarian assistance, national security protection, and crisis management — does not have the resources to expeditiously and safely process thousands of asylum-seekers, Ramos said.

In February, the Associated Press reported that many holding cells at border crossings were less than half full, some even empty, when large numbers of asylum-seekers were asking CBP for protection and were being told to turn back and wait. However, the AP said the border agency had long maintained that space isn't the only issue — having enough officers to process asylum-seekers is also a factor in telling people to wait.

In 2018, Jud Murdock, CBP’s acting assistant commissioner, told Congress that border agents were limiting asylum applications along the border because allowing too many immigrants to apply would inspire more people to come, BuzzFeed News previously reported.

The high-ranking CBP official contradicted claims from DHS that “metering” was due to resource constraints, including a lack of detention space and personnel.

But on Dec. 6, 2018, Murdock said in a closed congressional briefing that CBP had chosen to limit asylum-seekers at ports of entries because “the more we process, the more will come,” according to a letter written by senior House Democrats.

Last year, a CBP officer said supervisors instructed them to lie about not having space to process asylum-seekers at the border and turning them away, according to court documents. In a Nov. 19 deposition for Al Otro Lado's lawsuit, the CBP officer at the Tecate, California, port of entry said that despite having space to process asylum-seekers most days, they didn't.

"So you were instructed to lie to people when turning them back; is that right?" said the plaintiff's attorney Stephen Medlock.

"We were instructed, yes," the unidentified CBP officer said.

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