Congress Uncapped Asylum. Agencies Covertly Re‐​Capped It

President Trump signed an order last week that bans asylum to people crossing the southwest border, but it exempts all migrants who “present themselves for inspection at a port of entry.” This provokes the natural question—why wouldn’t they all just do that? The answer is that without any public announcement, the government capped the number of asylum seekers that it will admit legally.


This policy is clearly in violation of the statute, which states that anyone can apply for asylum at a designated port of arrival (or anywhere else they want). More importantly, Congress specifically left the asylum category without a cap. This is different than nearly every other type of immigration, including refugees, which have limits. Indeed, there used to be a quota on how many asylees could adjust status to legal permanent resident status, but Congress repealed even that in 2005.


Congress unequivocally wanted no limits on asylum, yet the government has created one anyway. Homeland Security Secretary Kirstjen Nielsen told Fox News that the government is “metering” at ports of entry, limiting the number it will take in. When confronted about this at a press conference, she incoherently said both that they weren’t “turning away” asylum seekers but that they were telling them to go away and “come back.”


Internal documents released as a result of a lawsuit show that the Department of Homeland Security (DHS) told ports of entry that “if you determine that you can only process 50 aliens at a time, you will request that the [Mexican government] release only 50. If [Mexico] cannot or will not control the flaw, your staff is to provide the alien with a piece of paper identifying a date and time for an appointment and return [them] to Mexico.” It is illegal to return someone who has a credible fear of persecution.


DHS has stationed its agents at the exact U.S.-Mexico borderline in front of the port of entry, pushing anyone coming to request asylum legally back into Mexico. If immigrants make it onto U.S. soil, that’s supposed to entitle them to a hearing. But even when they cross the official line, officers ignore their pleas and tell them to go away. Trying to walk past them is a criminal offense.


In October 2018, the government admitted 4,177 asylum seekers in family units—that is 135 people daily—at ports. Across 48 U.S.-Mexico ports of entry, that amounts to 2.8 family units daily at each port. The most family units allowed at ports per day during the Trump administration has been 3.8. The unpublicized limit is then an average of between 2.8 and 3.8 per day.


Human Rights First researchers have reported that the government is currently admitting 2 or 3 families per day at certain entry points in recent days, though it may be more or less on any given day. But at the current average rate, it would take about 3 years for the administration to process at ports all the families who crossed between ports of entry in 2018.


Remember that these individuals are people who the government is telling to live homeless in a country that is not their own. In June, the New York Times reported that asylum seekers turned away at ports had to live on the Mexican side of the border for weeks, sleeping in “squalid” conditions and enduring 100 degree days. “We depend on strangers for food, for water, for everything,” one said. “I wanted to do everything legally, to ask for asylum in the proper way, but this is a setback I did not expect for us.”


Another told the Atlantic that she crossed the border illegally with her daughter solely because they “were turned away by U.S. Customs and Border Patrol at the Paso del Norte port of entry.” In other words, the policy encourages otherwise law‐​abiding people to break the law. Once they cross, their asylum claim is finally heard. Border Patrol arrested her and took away her daughter, while the Department of Justice criminally prosecuted her.


DHS complains about a lack of “resources” to process asylum seekers, which force it to turn away people at ports. But this claim is baseless. For one thing, its policy results in them needing to arrest, detain, and prosecute the tens of thousands who cross illegally between ports of entry—which the president’s memo admits is more expensive.


Moreover, the ports process more than a half a million people every day, a few hundred asylum seekers would barely be noticed. In any case, the Immigration and Naturalization Service had far fewer resources than DHS does today when Congress passed the asylum statute, and it didn’t include a “resource” exception.


President Trump’s policy is a fraud. He is simply pretending that legal ports of entry are valid options for asylum seekers when, in fact, his administration has closed them down.