The Trump administration justifies its “zero tolerance” policy of prosecuting everyone who crosses into the US illegally — including asylum-seeking parents who are separated from their children by being placed in criminal jails — by saying that people who want asylum should seek it the “right way”: by presenting themselves at an official port of entry into the US (like an official road checkpoint at the US-Mexico border) rather than coming into the country illegally between checkpoints.
But some immigrants who try to seek asylum the “right way” are being turned away and told there’s no room for them now. And there’s evidence that border agents are physically blocking some asylum seekers from setting foot on US soil — in other words, from triggering a legal right to claim asylum in the US — to begin with.
Over the weekend, journalist Robert Moore (writing for Texas Monthly) witnessed a group of Guatemalans try to cross the bridge that connects Ciudad Juarez in Mexico to El Paso, Texas. They aimed to present themselves at the official US port of entry, on the other side of the bridge, where Customs and Border Protection (CBP) officials check the papers of people entering the country. But at the top of the bridge — right where Mexican territory ends and US territory begins — the group was stopped by CBP agents and asked for identification, and then told that there wasn’t room at the port of entry to process asylum claims.
Ultimately, three of the Guatemalans, who had proceeded a few steps into US territory, were allowed to go through to the port. But according to Moore, those who hadn’t yet set foot in US territory were blocked from doing so:
Two CBP agents who had been standing a few feet from the border stepped forward and stood directly on the line. I witnessed one of the agents, whose nametag said Augustin, take a couple steps into Mexico to prevent one of the Guatemalans from crossing into the United States. CBP spokesman Maier later said port officials denied that any agent crossed into Mexico.
Advocates have long alleged that government officials illegally turn away people trying to present themselves for asylum at ports of entry. (The Trump administration maintains that it’s not turning anyone away — just trying to manage limited capacity by telling people to come back when they can be processed.) But stopping people before they can set foot in the US is an apparent escalation.
Just as the government is promising to prosecute anyone who seeks asylum “the wrong way,” by crossing into the US illegally, it’s raising serious questions about how possible it is to seek asylum the right way either.
The government has a legal obligation to allow people to seek asylum at official crossings
It is perfectly legal to come to the United States without papers and request asylum. International law prohibits the US government from turning away people with legitimate humanitarian claims or from sending them back to countries where their lives are in danger.
Federal law and regulations specify that anyone who comes to the US without legal status, and claims a fear of persecution, has the right to an interview to determine whether that fear is credible; then, if they pass that interview, they have the right to formally seek asylum.
There are two ways to come to the US to claim asylum without having papers. One is to approach the US at an official port of entry, like the one on the end of the El Paso-Ciudad Juarez bridge, and present yourself to agents of CBP’s Office of Field Operations. The other way is to cross into the US between ports of entry — i.e., illegally — and, once caught by a US Border Patrol agent, say you’re seeking asylum. The asylum claim is still legal, but you’ve committed a crime (illegal entry) to make it.
The Trump administration’s “zero tolerance” policy targets people who come in the second way — the “wrong way.” In theory, all asylum seekers caught by Border Patrol agents after crossing illegally are referred to US attorneys and charged with illegal entry or reentry, even while their asylum claims are being processed (and while any children they came with are being processed as “unaccompanied alien children”).
The administration justifies widescale prosecution of asylum seekers by saying it’s their fault for coming the “wrong way.” “You have an option to go to a port of entry and not illegally cross into our country,” Homeland Security Secretary Kirstjen Nielsen told a Senate committee last month.
But in practice, do asylum seekers actually have that option?
The government says it’s trying to manage the flow of asylum seekers. Advocates see systematic denials.
Reports of Customs and Border Protection officials turning away asylum seekers at ports of entry have been floating around for a while. In July 2017, advocacy groups filed a lawsuit alleging that the federal government was engaged in the “unlawful practice” of turning away asylum seekers trying to come through the right way. The examples they gathered dated back to 2014, but the 28 individual asylum seekers who provided sworn testimony in the suit were turned back in fall 2016 and spring 2017 — most of them after the election of President Trump.
Some of the accounts in the lawsuit involve CBP officers appearing to lie to asylum seekers to keep them from coming in. The American Immigration Council, one of the advocacy groups filing the suit, wrote that asylum-seekers across three different states “reported being told that the U.S. government was no longer granting asylum altogether, or to people from specific countries.” And in some cases, they were even threatened with family separation as a result of pursuing their claims the right way: ”CBP officers in California and Texas threatened to separate parents from their children if they persisted in their attempts to seek asylum and did not leave the port of entry.”
But in most cases, asylum seekers in the suit report being told that there wasn’t room for them to be processed at the port of entry. And that might very well be true. That’s what CBP agents initially told the few hundred asylum seekers who made up the remnants of the Central American “caravan” when they presented themselves to a port of entry in California — then proceeded to process most of them over the next few days, presumably as resources became available. And it’s the same thing the Trump administration told the Guatemalans on the El Paso bridge.
Some advocates allege that the administration is lying about not having capacity. At the bridge confrontation over the weekend, a lawyer told a CBP agent, “I know by the numbers that ICE is turning over to us that there is room, because the numbers (of border-crossers) are low and they have been low this whole week.”
In many cases, though, it really does seem like ports of entry simply don’t have room to hold all the people who come in seeking asylum while they’re initially processed.
In the past, this wasn’t a huge deal. If an immigrant got too worried about being held up on the Mexican side of the border, she could cross into the US illegally and seek asylum afterward. Many of the asylum seekers interviewed for the advocacy lawsuit admitted that they’d done just that after one or more failed attempts to seek asylum the “right” way. And in many parts of the border, Border Patrol agents have a lot more capacity to process asylum seekers who’ve entered illegally than CBP agents at ports of entry do to process asylum seekers trying to enter legally.
The federal government doesn’t appear to have any plans to increase processing capacity at ports of entry. A CBP spokesperson told Vox that “when needed, CBP will shift additional resources to ports of entry,” but that the government doesn’t expect the current rate of asylum seekers coming into ports of entry to continue: “As in the past when we’ve had to limit the number of people we can bring in for processing at a given time, we expect that this will be a temporary situation.”
But it’s not at all clear whether that expectation is going to be borne out. After all, “zero tolerance” is supposed to redirect asylum seekers toward ports of entry. The only way that wouldn’t result in more people coming through at ports of entry would be if asylum seekers ended up not trying to come to the US at all.
Physically stopping asylum seekers before they can set foot on US soil is a serious escalation
The Texas bridge confrontation offered proof of a new tactic: “screening” would-be border crossers before they got to the official port of entry — i.e., when, or before, they first set foot in the US at all.
The Trump administration claims that it’s doing this for reasons of efficiency: the CBP spokesperson told Vox that the government is “taking a proactive approach to ensure that arriving travelers have valid entry documents in order to expedite the processing of lawful travel.” But one advocate told Moore that most people in line weren’t getting their IDs checked. Instead, border agents appeared to be targeting people with “the dark skin and threadbare clothing that is typical of many Central American migrants” — in other words, potential asylum seekers.
The minute someone steps onto US soil, she gains the legal right to ask for asylum here. That can pose an obstacle for agents trying to tell asylum seekers to come back later — at least when the asylum seeker is accompanied by a lawyer who insists that they have a right to seek asylum now. (This is why the Guatemalans on the bridge who’d gone a few steps past the US side of the line were ultimately able to enter the port of entry, despite initially being told there was no room.)
But if asylum seekers are kept on the Mexican side of the line, agents are on stronger legal ground in turning them away — that is, as long as they’re only being turned away temporarily. It’s not legal for the US to deny anyone the right to seek asylum, or to try to deter people with humanitarian claims from coming into the US.
The Trump administration claims that’s not their goal. “No one is being denied the opportunity to make a claim of credible fear or seek asylum,” a CBP spokesperson told Moore.
But sometimes administration officials talk as if their goal is to deter people from trying to seek asylum at all.
The Department of Homeland Security has justified its border crackdown using statistics that show an increase in people entering the US without papers — which includes asylum seekers at ports of entry, not just immigrants apprehended after crossing illegally. The administration’s rhetoric often acknowledges that its goal is to deter people from trying to enter the US at all — and a New Yorker article by Jonathan Blitzer reported that Trump administration officials directed staff to come up with ways to deter people from coming without papers to the US.
Politically, it makes sense. People who are skittish about border security — including, notably, the president of the United States — don’t make distinctions between people entering to seek asylum at ports of entry and people crossing illegally. The Trump administration has defined a “secure” border as a border in which as few people as possible cross into the US without papers — not as a border in which everyone who crosses is caught — which means that border security efforts have to extend to the outer limits of the physical United States.
Physically preventing people from setting foot on US soil certainly does that. But at what cost?
Is there still a “right way” to seek asylum in the US?
The Trump administration’s tactics at the border — both the ones it’s announced and bragged about officially and the ones that lawyers, advocates, and journalists have witnessed — add up to a picture that makes it hard to say, for sure, that someone with a legitimate need for humanitarian protection will be able to enter the US safely.
If an asylum seeker enters the US illegally, she’ll be referred for prosecution and put in jail. Her children will be taken from her with a promise of reunification once she’s served her sentence — a promise whose fulfillment is up to the already overwhelmed Office of Refugee Resettlement, which is struggling to house and keep track of the immigrant children it already has.
But if an asylum seeker tries to enter the US legally, at a port of entry, she may not fare any better. Some asylum seekers have been separated from their children at ports of entry, though advocates don’t believe it’s happening systematically. The Trump administration has promised to prosecute anyone who submits a “fraudulent” asylum claim — and Attorney General Jeff Sessions has made it clear that he suspects many, if not most, asylum claims are fraudulent.
She may not be allowed to enter legally at all. She might be turned back one or more times, told there’s no room for her today. She might be told there’s no room for her at this port of entry at all, or that the US isn’t taking refugees anymore, or that she’s not allowed to apply for asylum unless she registers with the Mexican government first. She might be blocked from setting foot on US soil, depriving her of even the nominal right to claim asylum in the US.
The Trump administration might be able to stay on the right side of the law, in the technical sense, as long as officials don’t say that migrants are categorically not able to seek asylum in the US (though the American Immigration Council lawsuit alleges individual agents are saying just that). But how real the ability to seek asylum is in practice isn’t clear right now. The administration is concerned with stopping people from seeking asylum the wrong way, but the alternative doesn’t look like a very clear path at all.