The Department of Homeland Security’s “Metering” Policy: Legal Issues

The Department of Homeland Security’s “Metering” Policy: Legal Issues

Legal Sidebari

The Department of Homeland Security’s
“Metering” Policy: Legal Issues
Updated July 17, 2023
Generally, an alien who arrives in the United States without valid documentation is subject to a
streamlined, expedited removal process, but may pursue asylum and related protections if, during
processing, the alien demonstrates a credible fear of persecution in his or her country of origin. Before the
Coronavirus Disease 2019 (COVID-19) pandemic, the Department of Homeland Security’s (DHS’s) U.S.
Customs and Border Protection (CBP) had been limiting the number of aliens who were processed each
day at designated ports of entry along the U.S. southwest border. Aliens affected by this policy generally
had not yet reached the U.S. border and were required to remain in Mexico until CBP decided it had the
capacity to process them. This CBP policy—known as “metering”—sought to address an “unprecedented
rise in asylum requests,” as well as safety and health concerns resulting from overcrowding at ports of
entry. The policy had led to long wait times and overcrowded conditions on the Mexican side of the
border, and arguably incentivized attempts to illegally cross the border between ports of entry.
In response to the COVID-19 pandemic, CBP in March 2020 implemented an order that shut down
asylum processing for many aliens arriving at the U.S. border (referred to as the “Title 42” order), with
certain exceptions. The Title 42 order remained in effect until May 11, 2023. During that period, CBP
largely suspended metering, and most asylum processing “waitlists” were closed to aliens seeking to enter
the United States after March 2020. In November 2021, CBP rescinded the metering policy.
To date, there has been one challenge to CBP’s metering policy that has resulted in a decision by a federal
district court. In 2017, a group of asylum seekers and advocacy organizations sued in the U.S. District
Court for the Southern District of California to challenge CBP’s metering policy, alleging that the policy
violated statutory, constitutional, and international law. In 2021, the district court ruled in Al Otro Lado v.
Mayorkas that metering violates statutory provisions that require CBP officers to inspect and process
asylum seekers arriving at the U.S. border, and infringes on their constitutional right to due process. In
2022, the court issued a declaratory judgment making it unlawful, “absent any independent, express, and
lawful statutory authority,” for CBP officers to refuse to provide “inspection or asylum processing” to
aliens “who are in the process of arriving” in the United States at a port of entry. Although CBP had
rescinded its metering policy by the time of the ruling, the questions raised in the Al Otro Lado litigation
may affect the extent to which CBP can restrict access to asylum at the southwest border in the future,
particularly after DHS announced initiatives to “manage regional migration” following the termination of
the Title 42 order in May 2023.
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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. According to a 2020
DHS Office of Inspector General (OIG) report, CBP had been limiting the number of aliens processed at
U.S. ports of entry since at least 2016 through its metering policy. Under the policy, CBP officers directed
asylum seekers who had not yet crossed the international boundary line into the United States to remain in
Mexico if there was insufficient space and resources at the U.S. port of entry. When CBP had the
operational capacity, CBP officers informed Mexican authorities that they could send specified numbers
of asylum seekers to ports of entry for inspection and processing. Nongovernmental organizations and
Mexican authorities maintained “waiting lists” identifying the asylum seekers awaiting CBP processing.
As noted, CBP suspended metering following implementation of the Title 42 order in March 2020,
shutting down most asylum processing at the border in light of the COVID-19 pandemic (with certain
exceptions). Waitlisted aliens have either remained in Mexican border cities, attempted to enter the United
States between ports of entry, been deported to their countries of origin, moved to other cities within
Mexico, or were processed under the Title 42 exceptions. In November 2021, CBP rescinded its metering
policy and directed officials to increase their operational capacity and streamline asylum processing at
U.S. ports of entry.
The metering policy is distinct from DHS’s “Migrant Protection Protocols” (MPP), a Trump
Administration policy that required most asylum seekers arriving at the U.S. southwest border to return to
Mexico pending their formal removal proceedings. Unlike the MPP, the metering policy applied to aliens
who had not yet been inspected by CBP, whereas the MPP applied to aliens whom CBP had already
inspected and placed in removal proceedings. (As discussed in another Legal Sidebar, the Biden
Administration terminated the MPP in 2021, though litigation concerning the termination is ongoing.)
Statutory Framework
The dispute over CBP’s metering policy largely centered on the language of (1) 8 U.S.C. § 1158, which
establishes rules for asylum eligibility and (2) 8 U.S.C. § 1225, which requires the inspection of aliens
seeking admission into the United States and provides a streamlined, expedited removal process for aliens
who arrive at or between a U.S. port of entry without proper documentation. Three statutory provisions
are particularly relevant:
1. 8 U.S.C. § 1158(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 1225(b) of this title”;
2. 8 U.S.C. § 1225(a)(3), which provides that all aliens “who are applicants for admission
or otherwise seeking admission . . . shall be inspected by immigration officers”; and
3. 8 U.S.C. § 1225(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 section 1158 of this title or a
fear of persecution.”
Legal Challenge to the Metering Policy
Under CBP’s metering policy, the agency limited the number of asylum seekers who were processed at
designated ports of entry each day and instructed some asylum seekers to remain in Mexico until CBP had

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the capacity and resources to process them. In some cases, asylum seekers waited in Mexico for weeks or
months before they could present their claims.
In Al Otro Lado v. Mayorkas, an immigration advocacy organization and six asylum seekers whom CBP
allegedly had turned away at various ports of entry after they had physically crossed the border filed a
class action lawsuit in 2017 challenging CBP’s metering policy. The plaintiffs amended their complaint in
2018 to include eight additional asylum seekers, several of whom CBP allegedly had 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 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 violated existing statutes 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 violated their due process rights by
denying or delaying their “access to the asylum process.” Finally, the plaintiffs argued that CBP’s policy
violated 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 asked a federal district
court to declare CBP’s metering policy unlawful and enter an injunction enjoining the agency from
continuing the policy.
The government disputed the existence of a “broadly sanctioned” metering policy for aliens who have
already arrived at U.S. ports of entry, but did not dispute that a metering policy applied to aliens outside
the United States who were attempting to arrive at the ports of entry. The government argued that these
“extraterritorial” plaintiffs had no basis to challenge metering because they had not physically crossed
into the United States when they were turned away. The government argued that statutory provisions
requiring the inspection of aliens “are triggered only if the alien is on American soil,” and 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.
Thus, the central issue in the Al Otro Lado case was whether CBP’s policy of turning back asylum seekers
attempting to arrive at U.S. ports of entry from Mexico complied with statutes governing the inspection of
applicants for admission, the constitutional protections generally available to aliens seeking admission,
and international law principles.
Statutory Considerations
The question of whether the metering policy was permissible largely turned on what it means for an alien
seeking admission to have “arrived in the United States” under federal statute. Plaintiffs alleged that the
metering policy conflicted with the applicable statutory framework because the plain language of 8
U.S.C. § 1225(a)(3) states that all applicants for admission (who are defined to include an alien “who
arrives in the United States”) “shall be inspected by immigration officers” (emphasis added).
Furthermore, plaintiffs argued that 8 U.S.C. § 1158(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). Additionally, although most asylum seekers without valid
documentation are subject to expedited removal, 8 U.S.C. § 1225(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

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fear of persecution. The plaintiffs argued that these statutory provisions applied to aliens attempting to
arrive at U.S. ports of entry from Mexico, even if they have not yet set foot on U.S. soil.
In Al Otro Lado, the government cited two Supreme Court decisions to support its contention that aliens
who have yet to reach U.S. ports of entry are not “arriving” aliens. In the 1993 case of Sale v. Haitian
Center Council, Inc., the Supreme Court reviewed the lawfulness of the Coast Guard’s interdiction of
vessels on the high seas carrying Haitian migrants and repatriation of those migrants back to Haiti. There,
the Court concluded that various immigration statutes—including those concerning asylum eligibility—
did not apply to aliens apprehended extraterritorially. More recently, in the 2020 case of DHS v.
Thuraissigiam, the Court rejected a constitutional challenge to the streamlined expedited removal process
brought by an alien apprehended by immigration authorities between U.S. ports of entry and roughly 25
yards from the border. In so doing, the Court observed that “[w]hen an alien arrives at a port of entry . . .
the alien is on U.S. soil” but the alien is still treated for purposes of procedural due process analysis as
having not yet entered the country. The Thuraissigiam Court held that the same constitutional principle
applied to those persons apprehended when illegally crossing into the United States between ports of
entry.
The district court concluded that both cases cited by the government were distinguishable and not
controlling upon its analysis of the metering policy. With regard to Sale, the district court observed that
the governing immigration statutes had been amended or superseded in the intervening years, so that the
Sale Court’s interpretative analysis was inapposite to the present-day statutory framework governing
metering. Additionally, the Al Otro Lado court explained that, unlike the individuals in Sale, the plaintiffs
in this case were turned away by CBP officers standing on the U.S. side of the border; therefore, their
actions, the court reasoned, involved a “domestic application of the statute,” negating the presumption of
extraterritoriality. Regarding Thuraissigiam, the district court viewed the Supreme Court’s observation
that an arriving alien is on U.S. soil as being “mere dicta” and concluded that nothing in Thuraissigiam
undercut the district court’s prior interpretation that the statutes apply to aliens “in the process of arriving”
at a U.S. port of entry who had not yet reached that destination.
The district court held that CBP’s metering policy ran afoul of its “statutorily mandatory duties” to
inspect and process asylum seekers even though the individual plaintiffs were eventually permitted to
come to the ports of entry and seek asylum. The court determined that the plain text of the relevant
statutes impose the inspection and processing requirements when the alien first “arrives” or “is arriving”
in the United States, not upon some “unspecified future arrival.” The court further opined that metering
was incompatible with Congress’s intent when it created the statutory framework governing applicants for
admission, to protect credible asylum applicants and enable the prompt admission of all aliens who are
entitled to be admitted, no matter whether they had arrived at a port of entry or entered unlawfully
between ports of entry.
Constitutional Considerations
The Al Otro Lado plaintiffs also argued that the metering policy violated their right to due process under
the Fifth Amendment by delaying or denying their ability to seek asylum in the United States. Plaintiffs
asserted a protected due process interest, i.e., “the right to be processed at a POE and granted meaningful
access to the asylum process,” against the backdrop that the Supreme Court has long held that aliens
seeking initial entry into the United States have limited 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 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, under the “entry fiction doctrine,” as
though they had never entered the country. In Thuraissigiam, the Supreme Court reaffirmed this “century-

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old rule” and held that an alien detained shortly after entering the United States between designated ports
of entry could be treated “as if stopped at the border.”
The government relied upon these principles in arguing that the Fifth Amendment’s due process
protections did not apply to the plaintiffs because they were physically outside U.S. territory when turned
away. The district court disagreed, ruling that the “extraterritorial” asylum seekers were entitled to due
process protections. To the district court, it was less constitutionally significant that the asylum seekers
may not have reached U.S. soil than it was that immigration authorities stationed in U.S. territory turned
them away, and that these personnel (in the view of the district court) violated governing statutes in
carrying out the metering policy, unlike the immigration authorities in Thuraissigiam who afforded the
petitioner all the rights he was due under the expedited removal statute. The court rejected the notion that
the availability of due process depends upon “bright-line” tests, such as whether an alien has developed
significant connections with the United States. The court concluded that “the Fifth Amendment applies to
conduct that occurs on American soil.” The court also determined that the plaintiffs’ due process rights
derived from protections Congress afforded through statute. The court held that CBP’s failure to inspect
the plaintiff asylum seekers, as required under governing statutes, thus violated their right to due process.
International Law Principles
The Al Otro Lado plaintiffs also claimed that CBP violated international law principles “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 (e.g., political opinion).
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.”
Initially, the district court in Al Otro Lado had ruled that under the Alien Tort Statute (ATS), which
authorizes civil actions by aliens for torts “committed in violation of the law of nations or a treaty of the
United States,” the plaintiffs had sufficiently pleaded a claim for civil liability on the grounds that the
metering policy violated non-refoulement principles. In its September 2021 ruling on the merits of the
case, the court recognized that Sale’s interpretation of Article 33 of the Refugee Convention as not
imposing extraterritorial non-refoulement obligations “remains binding precedent.” The court thus held
that the plaintiffs’ ATS claim “is not actionable as a matter of law.”
After the federal district court ruled on September 2, 2021, that the metering policy violated statutory
requirements concerning the inspection and processing of asylum seekers arriving at the U.S. border, the
court issued a declaratory judgment ruling on August 5, 2022. The government has appealed that
judgment to the Ninth Circuit, and the appeal remains pending before that court.
Conclusion
As Al Otro Lado shows, the legality of metering turned largely on the interpretation of statutes that
require the inspection of applicants for admission, and that generally afford aliens physically present or
arriving in the United States the opportunity to pursue asylum—including those subject to expedited
removal. The district court determined that these statutory requirements apply equally to aliens outside of

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the United States who are “in the process of arriving” at a port of entry, even if they have not yet reached
U.S. soil. Although CBP ultimately rescinded the metering policy, the district court’s decision may inform
consideration as to what extent the agency can limit access to the asylum screening and inspection process
for aliens seeking to enter the United States. For example, following the end of the Title 42 order in May
2023, DHS implemented new initiatives to create “safe and orderly” processes at the southwest border.
These initiatives include the use of an app called “CBP One” that allows individuals to schedule a time
and place for inspection at ports of entry, and a final rule that makes aliens who fail to utilize this system
(or other specified “lawful pathways”) ineligible for asylum. Legal challenges to these initiatives may
raise questions over whether they unlawfully restrict the ability to access the inspection and asylum
process in the same way that metering was found to impede access to that process. In one pending lawsuit
challenging the final rule, plaintiffs argue that many asylum seekers are unable to secure appointments
using the CBP One app in a timely manner, or otherwise cannot access the app for a variety of reasons
(e.g., because of technical issues, lack of internet access, or language barriers).
Given the uncertainty about the reach of the statutory inspection and processing requirements for asylum
seekers outside the United States, and the prior litigation concerning CBP’s metering practice, Congress
may consider clarifying the statutory framework governing aliens seeking admission. For example,
Congress may specify whether (or under what circumstances) CBP may regulate or limit the movement
and flow of asylum seekers attempting to arrive at designated ports of entry (whether through metering or
a digital appointment scheduling system). Additionally, Congress may consider clarifying the meaning of
“arrives” or “arriving” in the United States for purposes of determining when CBP’s “statutorily
mandated” duties to inspect and screen asylum seekers are triggered.

Author Information

Hillel R. Smith

Legislative Attorney

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