Officials Misled Congress to Ignore Asylum Law & Set Up Family Separations

In 2018, the Department of Homeland Security (DHS) instituted a policy of capping the number of asylum seekers that it would process at southwest ports of entry in direct violation of the law, which states that officers “shall refer” aliens arriving in the United States “for an interview by an asylum officer.” In December 2018, DHS Secretary Kirstjen Nielsen defended this “metering” policy and told Rep. Zoe Lofgren in sworn testimony that the agency lacked the “capacity” to follow the law or even to increase at all the processing of people who arrive “without papers.”

In response to Freedom of Information Act (FOIA) requests, we now know this was an indefensible statement. DHS both had more agents than ever at the southwest border and had double the detention capacity than it was using in December 2018. It simply chose to ignore the law. The true purpose behind “metering” was to stop people from making asylum claims legally at the ports—as one DHS official admitted at the time—and force them into Border Patrol’s family separation machine.

This is how it played out: DHS set the caps on asylum at ports so low that families were stranded in squalid and dangerous conditions in Mexico. Facing destitution, homelessness, and crime, asylum seeking families crossed illegally around the ports in order to apply for asylum as the law allows. Border Patrol arrested those families and, from April to June 2018, separated the children from their parents in order to refer the parents for criminal prosecution for crossing illegally.

Nielsen never explained what she meant by the ports lacking processing “capacity,” but FOIA responses from Customs and Border Protection Office of Field Operations (CBP-OFO), the DHS component that handles admissions at ports of entry, show that it had more agents at its field offices along the southwest border than in 2016 when the agency processed more immigrants.

Indeed, CBP-OFO greatly increased processing of undocumented immigrants at ports despite falling staff from 2012 to 2016, while increasing staff from 2016 to 2019 oversaw less processing. As Figure 1 shows, the Obama administration processed 82,106 more undocumented migrants in 2016 than in 2012—more than double the earlier amount—despite 97 fewer CBP-OFO officers. The Trump administration added officers every year—increases of 692, or 11 percent—yet it cut port processing. There were actually more agents than this under Trump because CBP-OFO also made an undisclosed number of temporary transfers to the southwest border as well.

But the annual figures significantly understate the reductions in port processing under Trump. In the month of October 2016, the Obama administration processed 20,524 undocumented migrants at ports. In December 2018, the Trump administration processed just 10,030. As Figure 2 shows, agents were processing fewer undocumented migrants down all along the border in all four field offices. Overall, the average CBP-OFO officer at a port of entry went from processing 3.1 undocumented migrants in October 2016 to just 1.4 per month—again less than half—in December 2018. During family separation, CBP-OFO dropped the caps on port processing even lower. There were also more families and children processed at ports in October 2016 than in any month of 2018.

Despite more agents, DHS also insists incorrectly that it must detain asylum seekers too, and it lacked space to do so. This “space” constraint was also untrue. CBP-OFO revealed in a FOIA release this month that it had the capacity for double the number of daily detentions than it was allowing in December 2018 at the time of Nielsen’s testimony.

Figure 3 shows the average daily number of detained persons by CBP-OFO at southwest ports of entry by month from 2012 until December 2018. In December 2018, it had a daily average detained population of 324 compared to 657 in October 2016. In other words, CBP-OFO had twice as much detention capacity as it was using in December 2018, and yet Nielsen insisted that the ports were at capacity. Again, the detained population actually declined all along the border at ports during family separation as agents turned families away.

This confirms contemporaneous reports that there were no overcrowded detention facilities at ports of entry. The DHS Office of the Inspector General wrote in September 2018 that “CBP reported that overcrowding at the ports of entry caused them to limit the flow of people,” but “the OIG team did not observe severe overcrowding at the ports of entry.” Again, in July 2018, “the processing rooms visible in the ports of entry visited by Human Rights First appeared to be largely empty.”

During family separation, Nielsen said, “there is no reason to break the law and illegally cross between ports of entry. You are not breaking the law by seeking asylum at a port of entry.” She neglected to mention that she was breaking the law by having her agents to turn them away. This practice resulted in the death of a father and his daughter after agents forced them back into Mexico, and they tried to cross the river.