Asylum seekers argue against ‘dangerous’ Border Patrol ‘metering’ policy in federal court

US argues it is not restricting asylum rights, just managing flow

A federal appeals court will hear oral arguments this week in a class action lawsuit challenging a US immigration directive that critics say illegally cuts off the right to claim asylum.

In 2017, rights groups and asylum-seekers sued the US over the practice of “metering,” also known as queue management, which entails Customs and Border Patrol (CBP) agents physically preventing migrants from crossing on to US soil, at which point they would have the legal right to claim asylum.

Lower courts have struck down “metering” in the past, but the present case being argued before the Ninth Circuit Court of Appeals could set an important future precedent as the Biden administration attempts to manage record immigration across the US-Mexico border.

"The Biden administration has not abandoned their entitlement to turn people away at the border," Baher Azmy, legal director of the New York-based Center for Constitutional Rights, told USA Today.

The group represents 13 people impacted by metering.

"If they win, it would give them a potentially dangerous first step to dilute the protections of asylum and deny people access to the asylum process,” the advocate continued.

The Independent contacted the Border Patrol for comment.

US officials in the past have argued they’re not cutting off asylum with metering, but rather managing the logistics of processing claims in a sustainable way.

The practice began in 2016 during the Obama administration, and grew more common under the Trump White House.

The Biden administration has employed metering at times since taking office, as well as other tactics, like a much-maligned border-crossing app to manage asylum claims.

CBP largely suspended metering between March 2020 and May 2023, during which the Title 42 programme that largely shut down asylum-processing on Covid grounds was in effect, according to the Congressional Research Service (CRS).

Despite metering being formally rescinded, the litigation “may affect the extent to which CBP can restrict access to asylum at the southwest border in the future,” per CRS.

Under the 1986 Immigration and Naturalization Act, people persecuted for being in protected categories like race, religion, and nationality have the right to seek asylum in the US.