Legal Sidebari

The Department of Homeland Security’s
Reported “Metering” Policy: Legal Issues
Updated August 13, 2019
Update: Following publication of this Sidebar, the federal district court considering the lawsuit
challenging the Department of Homeland Security’s (DHS) “metering” policy largely denied the
government’s motion to dismiss. The court ruled, among other things, that the “extraterritorial” plaintiffs
who were turned away when approaching the U.S. border could challenge the metering policy on
statutory and constitutional grounds. The court determined that these plaintiffs were subject to the
procedural protections generally available to asylum seekers under the Immigration and Nationality Act
because they were “arriving in the United States.” The court reasoned that the phrase “arriving in the
United States” (or “arrives in the United States”) refers to an “ongoing process,” and rejected the
government’s contention that the phrase refers only to those who have physically arrived on U.S. soil. The
court also determined that the “extraterritorial” plaintiffs were entitled to constitutional due process
protections, even though they were physically outside the United States when turned away, because their
lawsuit concerns a policy developed and implemented on U.S. soil. The court also ruled that under the
Alien Tort Statute, which authorizes civil actions by aliens for torts “committed in violation of the law of
nations or a treaty of the United States,” the individual plaintiffs could pursue their claim for civil
liability alleging that the metering policy violates international non-refoulement principles. (But the court
ruled that the organizational plaintiff, Al Otro Lado, could not present this claim under the relevant
statute.) Given the court’s decision, the lawsuit challenging DHS’s metering policy may proceed.
Below is the text of the Legal Sidebar from April 29, 2019.
Generally, a non-U.S. national (alien) who arrives in the United States without valid documentation may
pursue asylum and related protections if the alien demonstrates a credible fear of persecution or torture in
his or her country of origin. In recent years, the Department of Homeland Security’s (DHS) U.S. Customs
and Border Protection (CBP) has reportedly been limiting the number of asylum seekers who may be
processed each day at designated ports of entry along the U.S. southern border. Aliens reportedly affected
by this policy generally have not yet reached the U.S. border and, while at the cusp of physical entry,
remain in Mexico. This policy—known as “turnback” or “metering”—is intended to address an
“unprecedented rise in asylum requests,” as well as safety and health concerns resulting from
overcrowding at ports of entry. However, it also has reportedly led to long wait times and overcrowded
conditions on the Mexican side of the border, and some contend the policy may incentivize attempts to
illegally cross the border between ports of entry. In addition, there have been claims that CBP, in
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implementing this policy, has used coercive and deceptive methods to deter aliens from seeking asylum.
In 2017, a lawsuit was filed challenging the metering policy on the basis that it unlawfully deprives aliens
of the opportunity to seek asylum, and that case is currently pending in federal district court. The
litigation raises important questions about the scope of protections available for asylum seekers who have
not yet reached the U.S. border, and whether the reported metering policy complies with federal
immigration laws, constitutional requirements, and international treaty obligations.
Background on Metering
There is no federal statute or regulation that directly governs the circumstances in which CBP may limit
the number of asylum seekers who may be processed at designated ports of entry. But according to a 2018
DHS Office of Inspector General (OIG) report, CBP has been “regulating the flow of asylum-seekers at
ports of entry” since at least 2016 through its metering policy. The OIG report states that, under the
policy, CBP officers direct asylum seekers who have not yet crossed the international boundary line into
the United States to remain in Mexico if there is insufficient space and resources at the U.S. port of entry.
The OIG report indicates that the CBP officers will inform the asylum seekers when the port of entry has
the capacity to process them.
The metering policy is distinct from DHS’s “Migrant Protection Protocols” (MPP), which require most
asylum seekers who have arrived at the U.S. southern border to return to Mexico pending their formal
removal proceedings. Unlike the MPP, the metering policy applies to aliens who have not yet been
inspected by CBP, whereas the MPP applies to aliens who have already been inspected and placed in
removal proceedings. Recently, a federal district court issued a preliminary injunction barring DHS from
continuing the MPP pending the court’s resolution of a legal challenge to that policy. The U.S. Court of
Appeals for the Ninth Circuit has temporarily stayed that injunction pending the government’s appeal.
Importantly, when defending the metering policy in litigation, the government has disputed the existence
of such a policy with respect to aliens who have physically arrived at U.S. ports of entry. The government,
however, has argued that such a policy may be lawfully applied to aliens who have not physically crossed
into the United States and who, while at the cusp of entry, remain on the Mexican side of the border.
Statutory Framework
The dispute over CBP’s metering policy largely centers on the language found in Section 208 of the INA,
which establishes rules for asylum eligibility, and Section 235 of the INA, which requires the inspection
of aliens seeking admission into the United States, and provides a streamlined, expedited removal process
for aliens arriving at or between a U.S. port of entry who lack proper documentation. Three provisions are
particularly relevant:
 INA § 235(a)(3), which provides that all aliens “who are applicants for admission or
otherwise seeking admission . . . shall be inspected by immigration officers”;
 INA § 208(a)(1), which states that “[a]ny alien who is physically present in the United
States or who arrives in the United States (whether or not at a designated port of arrival .
. .), irrespective of such alien’s status, may apply for asylum in accordance with this
section or, where applicable, section [235(b)] of [the INA]”; and
 INA § 235(b)(1)(A)(ii), which states that an alien who is “arriving in the United States”
and subject to expedited removal must be referred to an asylum officer if “the alien
indicates either an intention to apply for asylum under [INA § 208] or a fear of
persecution.”

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Legal Challenge to the Metering Policy
Under CBP’s metering policy, the agency is reportedly limiting the number of asylum seekers who can be
processed at designated ports of entry each day, and instead instructing some asylum seekers to remain in
Mexico until CBP has the capacity and resources to process them. In some cases, asylum seekers have
reportedly waited in Mexico for weeks or months before they could present their claims.
In 2017, an immigration advocacy organization and six asylum seekers who allegedly had been turned
away at various ports of entry after physically crossing the border filed a class action lawsuit challenging
CBP’s metering policy. The lawsuit was amended in 2018 to include eight additional asylum seekers,
several of whom had been turned away “in the middle of the bridge” when approaching the U.S. border.
The plaintiffs, who claimed that asylum seekers are subject to “dangerous conditions of rampant crime
and violence by gangs and cartels on the Mexican side of the border,” argued that CBP’s metering system
“creates unreasonable and life-threatening delays in processing asylum seekers.” They also alleged that
CBP officials have discouraged aliens from pursuing asylum by forcibly removing them from ports of
entry, threatening them with prolonged detention or separation from their children, and falsely telling
them that they can no longer pursue asylum due to changes in U.S. law.
The plaintiffs argued that CBP’s metering policy violates INA provisions that allow any alien who is
physically present or arriving in the United States to pursue asylum, and that require CBP to refer any
alien subject to expedited removal who indicates an intention to apply for asylum or a fear of persecution
for a credible fear interview. The plaintiffs also argued that CBP has violated their due process rights by
denying or delaying their “access to the asylum process.” Finally, the plaintiffs argued that CBP’s policy
violates the international law concept of non-refoulement, which instructs that no country should expel or
return an individual to a place where he or she faces persecution. The plaintiffs requested the federal
district court to declare CBP’s metering policy unlawful and enjoin the agency from continuing it.
Following the filing of the plaintiffs’ initial complaint, the Department of Justice (DOJ) disputed the
existence of a “broadly sanctioned” metering policy for aliens who have already arrived at U.S. ports of
entry, and claimed that the plaintiffs’ claims became moot because they were ultimately inspected and
referred for credible fear interviews. After plaintiffs amended their complaint to include plaintiffs who
were turned away when approaching the U.S.-Mexico border, the DOJ did not dispute the existence of a
metering policy that applied to aliens outside the United States. Instead, in a motion to dismiss, the DOJ
argued that the “extraterritorial” plaintiffs had no basis to challenge CBP’s metering policy because,
unlike the original named plaintiffs, they had not physically crossed into the United States when they
were turned away. The DOJ argued that the INA provisions requiring the inspection of aliens “are
triggered only if the alien is on American soil,” and accordingly do not govern policies directed at aliens
located outside the United States, even when such aliens are at the threshold of reaching the U.S. border.
At this juncture the key legal issue in the litigation is how the relevant statutes apply to those aliens who
have not actually reached the U.S. border. (The federal district court has not yet ruled on the DOJ’s
motion to dismiss.)
Analysis of CBP’s Metering Policy as Applied to Aliens outside the
United States
The legal challenge to CBP’s metering policy asks whether that policy is consistent with federal
immigration statutes, including whether those statutes apply to aliens at the cusp of physical entry into the
United States. In analyzing the metering policy, reviewing courts may consider whether that policy
complies with relevant statutes concerning the inspection of applicants for admission, the constitutional
protections generally available to aliens seeking admission, and any international treaty obligations.

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Statutory Considerations
The question of whether the metering policy is permissible largely turns on the application of INA
provisions concerning the inspection of aliens seeking admission. Plaintiffs allege that the metering policy
is inconsistent with this framework because INA § 235(a)(3) states that all applicants for admission
(which is defined to include an alien “who arrives in the United States”) “shall be inspected by
immigration officers” (emphasis added). Furthermore, plaintiffs contend, INA § 208(a)(1) provides that
“[a]ny alien who is physically present in the United States or who arrives in the United States . . .
irrespective of such alien’s status, may apply for asylum” (emphasis added). And though most asylum
seekers without valid documentation are subject to expedited removal, INA § 235(b)(1)(A)(ii) requires a
credible fear interview if an alien “arriving in the United States” indicates either an intention to apply for
asylum or a fear of persecution. Thus, plaintiffs allege, by indefinitely delaying the inspection of asylum
seekers, CBP’s metering policy violates the INA’s express statutory command.
However, in response, the DOJ argues that some—though not all—of the named plaintiffs are not entitled
to these statutory protections because they never “arrived in the United States,” but were turned back
while approaching the U.S.-Mexico boundary. In these circumstances, the DOJ contends, CBP had no
statutory obligation to inspect the “extraterritorial plaintiffs” and process their asylum claims. The 2018
OIG report states that, under the metering policy, CBP officers “stand at the international line out in the
middle of the footbridges” linking the United States and Mexico, and, if no space is available at the port
of entry, they direct asylum seekers to go back before they actually cross the boundary line.
With respect to its argument that the relevant INA provisions do not apply to aliens who have not yet
reached the U.S. boundary, the DOJ may find some support in Sale v. Haitian Center Council, Inc., where
the Supreme Court held that a statute prohibiting the removal of aliens to countries where their life or
freedom would be threatened on account of a protected ground had no extraterritorial application to aliens
intercepted on the high seas. The Court determined that the statute applied only to “the domestic
procedures” by which the government determines whether an alien should remain in the United States.
Based on this precedent, the DOJ argues that the statutory protections generally available to aliens
seeking asylum in the United States do not apply to those who have not crossed the U.S.-Mexico
boundary line. On the other hand, it might be argued that the aliens in Sale were in a meaningfully
different position than aliens near the U.S.-Mexico border who are affected by the metering policy,
because the aliens intercepted on the high seas in Sale, unlike the aliens impacted by the metering policy,
were not at the threshold of physical entry into the United States when turned back.
A key question in resolving the challenge to the metering policy may involve the reviewing court’s
interpretation of INA provisions requiring the inspection of applicants for admission, which at various
points refer to an alien who “arrives in,” is “arriving in,” or is “otherwise seeking admission” to the
United States. Based on this language, the plaintiffs argue that the inspection requirements extend even to
those who are in the process of coming to the United States. The plaintiffs and their supporters contend
that DHS regulations support their interpretation, as they define an “arriving alien” as “an applicant for
admission coming or attempting to come into the United States at a port-of-entry” (emphasis added).
They contend that this definition would cover asylum seekers who, though technically on Mexican soil,
are attempting to arrive at a designated port of entry. The DOJ argues that, under governing statutes and
regulations, an alien must be physically present on U.S. soil in order to be “arriving in” the United States.
To the extent there is any ambiguity in that phrase (and the associated term “arriving alien”), a reviewing
court may consider whether such a construction is reasonable.
Additionally, the DOJ argues that Congress has granted the Secretary of Homeland Security broad
immigration enforcement powers at the border. For example, under INA § 101(a)(5), the Secretary “shall
have the power and duty to control and guard the boundaries and border of the United States against the
illegal entry of aliens.” Similarly, under the Homeland Security Act of 2002, the Secretary is charged with

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“[s]ecuring the borders, territorial waters, ports, terminals, waterways, and air, land, and sea
transportation systems of the United States,” and, in carrying out those responsibilities, the Secretary may
“ensur[e] the speedy, orderly, and efficient flow of lawful traffic and commerce.” These authorities
arguably supply some support for CBP’s metering policy. On the other hand, these broad authorities may
not override other specifications found in the INA, including those establishing inspection procedures for
arriving aliens seeking to apply for asylum. Accordingly, notwithstanding the general authority conferred
to the Secretary of Homeland Security to secure the borders and deter illegal crossings, the legality of the
metering policy may turn on the proper construction of the INA provisions concerning the inspection of
arriving aliens.
Constitutional Considerations
In their lawsuit, the plaintiffs argue that the metering policy violates their right to due process by delaying
or denying their “access to the asylum process.” The Supreme Court, however, has long held that aliens
seeking initial entry into the United States have no constitutional rights regarding their applications for
admission because “the power to admit or exclude aliens is a sovereign prerogative,” and they are only
entitled to whatever procedures Congress authorized by statute. These limitations, moreover, apply not
only to aliens who are physically outside of the United States, but also to those who are standing “on the
threshold of initial entry,” such as at a border checkpoint, and who are treated, by virtue of the “entry
fiction doctrine,” as though they had never entered the country. Therefore, to the extent the plaintiffs
contend that CBP’s metering policy violates a substantive due process right by preventing their entry into
the United States, those claims are likely foreclosed by Supreme Court precedent (though claims raised
alleging inhumane treatment or abuse by aliens who reached U.S. soil might have greater viability).
In defending the metering policy, the DOJ has also urged that the government has the inherent authority
“to control the flow of travel across the border,” and that this authority is rooted in its “plenary power”
over immigration. The Supreme Court has long held that the federal government has “broad, undoubted
power over the subject of immigration and the status of aliens,” and that this power stems from the
government’s inherent sovereign authority to control its borders and its relations with foreign nations.
Notably, the Court has construed this “plenary power” as being more absolute than any other power
conferred by the Constitution, and that “Congress may make rules as to aliens that would be unacceptable
if applied to citizens.” Accordingly, it could be argued that, based on this power, CBP has the authority to
restrict the number of aliens who may be processed at ports of entry. On the other hand, the Supreme
Court has typically described this plenary power as primarily residing with Congress, and CBP’s exercise
of such power is presumably informed and constrained by the parameters set forth in the INA.
International Law Principles
The plaintiffs have also claimed that CBP has violated international law concepts “reflected in treaties
which the United States has ratified and implemented.” The 1967 United Nations Protocol Relating to the
Status of Refugees (Refugee Protocol), to which the United States is a party, incorporates Articles 2
through 34 of the 1951 U.N. Convention relating to the Status of Refugees (Refugee Convention). Under
Article 33 of the Refugee Convention, member states may not “expel or return (‘refouler’) a refugee in
any manner whatsoever to the frontiers of territories where his life or freedom would be threatened” on
account of a protected ground. Similarly, under Article 31, member states “shall not impose penalties, on
account of their illegal entry or presence, on refugees who, [are] coming directly from a territory where
their life or freedom was threatened” on account of a protected ground. Recently, a federal district court
enjoined DHS from continuing the unrelated MPP policy that requires most asylum seekers who arrive at
the U.S. southern border to return to Mexico pending their formal removal proceedings, in part because
the court believed that policy provides insufficient safeguards against the return of aliens to places where
they face the threat of persecution.

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U.S. authorities have generally construed the protections afforded by the Refugee Convention as applying
only to aliens who are within U.S. territory, and who may not be expelled or otherwise penalized because
of their unlawful entry or presence. In Sale, the Supreme Court determined that the Refugee Protection’s
non-refoulement provisions “cannot reasonably be read to say anything at all about a nation’s actions
toward aliens outside its own territory.” Thus, to the extent asylum seekers are turned back while they are
still in Mexico, as DHS’s OIG report indicates, CBP’s metering policy arguably does not implicate the
Refugee Convention as construed by U.S. courts.
In any case, the Refugee Protocol is not self-executing and therefore is not directly enforceable in federal
court. But as one federal district court has concluded, the Refugee Protocol may serve an “interpretive
guide” for revealing Congress’s intent. Thus, the INA provisions requiring the inspection of applicants for
admission (and consideration of any asylum claims raised during such inspection), when read in light of
the Refugee Convention, suggest that Congress clearly intended that any arriving alien must have an
opportunity to seek asylum even if he lacks authorization to enter the country. As discussed above,
whether these statutory protections extend to aliens who have not yet crossed the U.S.-Mexico threshold
remains uncertain, and courts may decide to address whether they have any extraterritorial application.
Conclusion
The legality of CBP’s metering policy thus turns largely on the proper interpretation of INA provisions
that require the inspection of applicants for admission, and that afford all aliens physically present or
arriving in the United States the opportunity to pursue asylum—even those who would otherwise be
subject to expedited removal. The key question raised in the metering policy litigation is whether these
statutory requirements apply to aliens outside of the United States who have not yet reached the U.S.-
Mexico threshold. To the extent there is any ambiguity concerning the reach of these provisions, Congress
may consider clarifying the statutory framework governing the inspection of aliens seeking admission,
and specifying whether (or under what circumstances) CBP may regulate the flow of asylum seekers
attempting to arrive at designated ports of entry.


Author Information

Hillel R. Smith

Legislative Attorney





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