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3 years after 'metering' instituted by Trump, 3,800 asylum-seekers still wait along Arizona border

Three years after an ad-hoc policy was implemented by the Trump administration to keep asylum-seekers from legally crossing the border to make their cases here, nearly 3,800 people remain in legal limbo in three cities along the Arizona-Mexico border.

The policy, known as "metering," is one of three Trump-era policies that have kept thousands of people, largely families traveling with children, from being able to seek legal asylum protections in the United States. 

On the others side of the U.S.-Mexico border, around 18,680 asylum-seekers are on waitlists in eight Mexican border cities. This number has only increased from February to May, as the number of people waiting to establish their cases under U.S. immigration law has grown by about 15 percent, according to an analysis published by the Robert Strauss Center for International Security and Law based at the University of Texas at Austin. 

Since 2018, the Strauss Center, working in conjunction with the Center for U.S.-Mexico Studies at the University of California San Diego and the Migration Policy Centre at the European University Institute, has documented informal lists of people seeking asylum managed by Mexican authorities and humanitarian groups. 

Nearly 1,800 people are waiting in San Luis Rio Colorado—the Mexican city that sits just south of Yuma, Ariz. Another 990 are waiting in Nogales, Sonora, and nearly 1,000 people are waiting in Agua Prieta, just across the border from Douglas, in Southern Arizona.

For Felicitas, and her four children, including 9-year-old son Ismael, this has meant more than 18 months waiting for a chance to enter the U.S. and seek asylum. Felicitas and her family fled from the Mexican state of Guerrero and headed north because her family "faced threats," she said. But the Mexican city of Nogales, Sonora, has not been a refuge — rather her older children have remained in their apartment in hiding, and her youngest son has missed nearly two years of school.

"He's been robbed of his schooling," she said. As she spoke, her son Ismael peaked through the 30-foot high metal bollards that splits the twin communities of Ambos Nogales in two. 

She begged the Biden administration to allow her family, along with dozens of other asylum seekers at a rally in Nogales, to be allowed to enter the U.S. for a chance at asylum. She said that in Mexico, people are always watching the house they're staying in, and she worries that people from Guerrero will find them in Nogales. 

"We want to enter the U.S. the legal way," Felicitas said. "We want to be safe, we want to shout to the rooftops to tell President Biden to please let us come into the U.S.," she said.

Legal asylum-seekers barred from entering U.S. to make cases

Felicitas and her family are some of thousands blocked from entering the U.S. by a series of policies created by the Trump administration to rebuff asylum seekers. 

The "metering" policy intentionally kept asylum-seekers from being able to enter U.S. border crossings, known as "ports of entry," to state their cases and get a credible fear interview, which is the first hurdle in getting asylum in the U.S. 

The second was the "Remain in Mexico" policy, otherwise known as the "Migrant Protection Protocols," which used Mexico as a waiting room for asylum-seekers, forcing them to wait months, even years for their cases to move through the immigration courts. In April 2020 in response to the COVID-19 pandemic, the Trump administration implemented Title 42, a policy ostensibly supported by the CDC that allowed U.S. Customs and Border Protection to immediately expel people who crossed into the U.S. if they had traveled through a country with COVID-19 infections. 

All told, this fiscal year, CBP has expelled 536,793 people from the U.S. under Title 42 since October 2020, including more than 141,000 people traveling as families, and 64,642 children traveling without parents or guardians. Under the Biden administration, during April alone, U.S. Border Patrol expelled 17,538 people traveling as families from the U.S. under Title 42.

However, in recent weeks, DHS has begun granted limited humanitarian exemptions under Title 42 to especially vulnerable asylum seekers, and Title 42 faces a serious legal challenge from the ACLU in a Washington D.C. court. 

Meanwhile, metering remains in place for most migrants, and while the Biden administration said in February that it would wind down MPP by processing people into the U.S. for the duration of their asylum cases, only about 10,000 people have able to come into the U.S. through four ports of entry, including San Ysidro near San Diego and three crossings in Texas: El Paso, Brownsville, Laredo, McAllen, and Eagle Pass. Most of the people granted access to the U.S. have gone to pursue their asylum cases outside of Arizona, and data from the Transactional Records Access Clearinghouse, a nonpartisan project based at Syracuse University, show that just a few dozen have stayed in the state. 

In Nogales, the asylum waitlist in Nogales has remained closed since March 2020, and the Nogales municipal government "continues to be unresponsive" about the status of the people on the list despite "multiple attempts by a local organization to communicate with the local government," the Strauss Center said. 

In San Luis Rio Colorado, a shelter has remained closed since November, and many of the asylum seekers have "gone to live in cities in Mexico’s interior and continue to call the shelter daily for updates," the Strauss Center said. 

And, in Agua Prieta, the CAME migrant shelter manages the list of those waiting.

"The list manager continues to accept new entrants by phone, yet discourages asylum seekers from signing up, due to the COVID-19 border restrictions," the Strauss Center said.

Republicans slam Biden over border backlog, crossings

Despite leaving these measures in place, congressional Republicans and Arizona Gov. Doug Ducey have sharply criticized the Biden administration's handling of what they call a growing "crisis" along the border. And, Ducey has used the rise in apprehensions, along with Douglas, as a backdrop to argue that the president was out of touch. 

"I've been governor under three presidents, and this is by far the worst situation we've seen," Ducey said. "Washington has never been more out of touch, and it starts at the top."

Ducey later announced that he was sending 250 National Guard troops to the border. 

Since April 2020, the number of people encountered by U.S. Border Patrol agents along the southwestern border has dramatically increased, rising from 17,106 to 78,443 people in January under Trump administration. In the following three months, the number of encounters by Border Patrol grew by leaps and bounds, rising to 101,120 people in February to 173,348 people in March. By April, the number of encounters plateaued, rising just three percent. 

This was largely driven by an increase in the numbers of single adults largely from Mexico attempting to cross into the U.S., and Title 42—a Trump-era policy that allowed CBP officials to immediately expel someone from the U.S. under a public health order from the CDC. With Title 42 in place, people are rapidly processed and deported, and so, some migrants have attempted to come into the U.S. multiple times. 

Troy Miller, the acting commissioner for CBP, said that in February while more than 100,000 people were apprehended, this represented about 75,000 "unique individuals." And, the recidivism rate is at its highest rate in years at 20 percent. 

Meanwhile, the number of unaccompanied children has steadily increased, rising from just 63 children that month to 18,883 in March 2021. Advocates for children have linked the influx to the institution of the Migrant Protection Protocols and Title 42—two Trump-era policies that have largely kept migrant families and children from seeking asylum in the U.S. 

Even Democratic Sen. Mark Kelly took shots at the White House, telling KTAR during an interview in May that "D.C. has failed Arizona on border security and immigration here for decades."

"Washington needs to do better and I’m going to continue to push Washington to do better," Kelly said.

Biden: 'Eliminating bad policy'

The Biden administration stopped enrolling people in MPP, removed a rule that barred people from seeking asylum who didn't seek protection in Mexico or a third country, and shuttered two programs that forced some asylum seekers who did get into the U.S. to stay in CBP custody before they could receive their first interview for asylum. 

Biden said that while there was a "lot of talk" about the number of executive orders he signed, especially regarding immigration, he was "eliminating bad policy." 

"And I want to make it clear—there's a lot of talk, with good reason, about the number of executive orders that I have signed—I'm not making new law; I'm eliminating bad policy," he said. "What I'm doing is taking on the issues that—99 percent of them— that the president, the last president of the United States issued executive orders I felt were very counterproductive to our security, counterproductive to who we are as a country, particularly in the area of immigration." 

Nonetheless, aspects of the Trump approach to stemming immigration and asylum-seekers remain. 

Metering began in April 2018 when leaders within Customs and Border Protection told officers that they could limit asylum-seekers' access to ports of entry, and created the "metering" system to limit the number of asylum-seekers who could enter . As part of this policy, CBP officers were stationed at the international boundary with Mexico, and the officers told asylum-seekers that the ports were full. By June of that year, the head of CBP's parent agency, the Department of Homeland Security, established metering across the U.S.-Mexico border, and told port directors that processing people seeking asylum should take a back seat to other priorities, including stopping the smuggling of drugs and intercepting illegal currency. 

CBP put this policy into place without public notice, and as the Inspector General for DHS described in a 2020 report on metering, CBP officers at seven ports of entry refused to process "virtually all undocumented aliens, including asylum seekers." Instead, officials "redirected them to other port locations," the OIG said violating long-standing policy to process people at "Class A" ports.

More significantly, at four U.S. crossings, including Nogales, CBP staff turned away asylum-seekers after they had already entered the U.S. 

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As the OIG noted, the line that CBP officers used at Nogales at the Morley pedestrian crossing, a smaller crossing just east of the large Dennis DeConcini Port of Entry, the line that officials used was inside the U.S. And, data from the ports at that time showed that the ports were not "full." At the the San Luis, a facility built to hold 48 people had just 5 in custody during the OIG's visit, even though a line of people seeking asylum stretched away from the port. 

During the OIG's visit, officials at San Luis gave a "range of answers," including telling the inspectors that the people waiting outside were not "real asylum-seekers, but had rather came to seek economic opportunity." 

"However, this assumption on the part of the official is not an appropriate basis for CBP to refuse to process individuals, as CBP officials do not have the authority evaluate the credibility of asylum claims, and must process all claiming to seek asylum, regardless of the officials' opinion about the strength of their claims," the OIG wrote. The OIG found a similar situation in Nogales were in 2014 the agency had added holding cells for families, but hadn't used the extra areas since 2016 when Haitian migrants attempted to seek asylum at the port. 

As the Strauss Center noted, after they were refused asylum at U.S. ports, some people crossed the border illegally between ports of entry. 

"The main positive shift is that Biden has implemented phase one of undoing MPP," said Alexandra Miller, a managing attorney with the Florence Project. About one-third of people in MPP will be accepted into the U.S. because they have open cases, she said,  but this leaves out those who lost their case because it was ruled "in absentia" because they missed a hearing. "There were a lot of individuals who missed court dates for safety reasons, including people who had been kidnapped," Miller said. Others went sent to Tapachula at the very southern tip of Mexico, and "didn't make it back up in time for their hearing," she said. So while it's a positive step forward, it's not the whole thing." 

"What we're looking at the reality here in Nogales, and all across the border is that people have been told for 13 or 14 months that they can't come in," she said. "And, Title 42 comes and people are pushed back based on this idea that we don't have the resources, or there's some kind of urgent need at the border that contradicts the humanitarian need." Miller questioned the public health reasoning around Title 42, noting that many CBP officers at the port don't wear masks. 

"We have to consider its impact, and you may have thoughts about whether it makes sense or not, but from the get-go, we knew that this was not really an order surrounding public health because you can process asylum seekers, you can put in measures to protect people safely during a pandemic." 

Meanwhile, she said that Title 42 has shifted people from attempting to get asylum at the ports, under the legal process required by U.S. law. Instead, people are trying to cross in the desert beyond the ports, and often people are crossing multiple times in a hope to find refuge in Arizona. 

"So now, people aren't just dealing with the harm in their own country, they're dealing with the harm here, it becomes localized at the border and there's no good legal pathway to let people come into the U.S.," Miller said. 

Joanna Williams, the executive director of the Kino Border Initiative, a binational aid ministry, said that her group manages about 700-800 people expelled from the U.S. under Title 42, and that people in Nogales face extortion and violence in the city after they're sent back to Mexico. Similarly, people who have been stranded under MPP remain confused and anxious, even as the program has begun to wind-down in other cities, notably in Tijuana and Juarez. 

Williams also criticized CBP's policy of expelling people late at night, which makes vulnerable migrants more so. Increasing the confusion and difficulty, the state of Sonora has refused to issue travel documents to some people, which makes it impossible for them to travel on Mexican bus lines from city to city. "While Nogales has always been safer than other border cities, there's been an increase in violence against migrants,"she said. "Human beings are just collateral to larger policies," Williams said. 

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Paul Ingram/TucsonSentinel.com

A young boy watches a gathering of migrants in Nogales, Sonora who pushed for the Biden administration to remove Trump-era policies that keep hundreds living in Nogales from accessing asylum in the U.S.

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