For many years, the United States federal government maintained a singular, insistent message for individuals seeking asylum at the U.S. Mexico border. The instruction was simple and bipartisan. They were told to go to a designated port of entry rather than crossing the border illegally. This approach was promoted by both major political parties.

In June 2018, former Secretary of Homeland Security Kirstjen Nielsen stated that those seeking asylum should go to a port of entry and that they did not need to break the law to do so. This sentiment was echoed by President Trump, who frequently told reporters that arriving at a port of entry was the legal way to handle the situation. This official stance was backed by policy as successive administrations moved to limit asylum claims for anyone who did not arrive at an official port.

However, there is a massive disconnect between this official rhetoric and the reality on the ground. Since 2016, the process of initiating an asylum claim at southern border ports of entry has been difficult and often impossible. For countless migrants over the last decade, the act of physically going to a port of entry resulted in nothing.

The Reality of Metering Practices

Starting in 2016, officials from U.S. Customs and Border Protection began utilizing a practice known as metering. This involved customs officers standing at the border line and physically preventing arriving migrants from stepping onto United States soil. The consequences of this tactic were often chaotic. Migrants were turned back toward dangerous situations, and corrupt actors south of the border frequently profited from the refusals issued by American officials.

In response to these practices, the American Immigration Council and various partners filed a lawsuit in 2017. The goal was to hold the government to its own promises and ensure that individuals could follow the legal path the government claimed to prefer. The argument was that when officers told migrants standing inches from the border to leave, they were violating the law. Under existing statutes, customs officers are required to inspect anyone seeking admission or arriving in the United States. Furthermore, asylum law dictates that any person who is physically present in or arrives in the United States has the right to apply for asylum.

A Controversial Supreme Court Ruling

Despite earlier successes in lower courts, the Supreme Court recently ruled against the plaintiffs. The court held that a person standing inches from the border who is blocked from accessing a port of entry is not someone who has arrived in the United States. Consequently, the court concluded that customs officers have no obligation to inspect such individuals, and the migrants themselves have no legal right to access the asylum process. If a person stands at the physical border and asks a customs official for asylum, that official is now under no legal obligation to assist them and may simply instruct them to walk away.

Despite this outcome, some former senior officials from the Department of Homeland Security have argued that this ruling is a victory. They suggest that metering is effective border policy. However, this perspective ignores the historical reality of how these policies functioned and the damage they caused to the rule of law.

Why Metering Undermines Orderly Operations

When metering was in full effect, it did not create an orderly system. Instead, it artificially limited the number of people permitted to seek asylum. At its simplest level, metering consisted of officers telling migrants that they were closed for the day and forcing them to leave. At its more complex level, it required migrants to register for informal waiting lists managed by private actors or foreign government officials in northern Mexico.

Migrants often waited for weeks or months in these locations, existing in squalid conditions within makeshift camps, shelters, or on the streets. During these long periods of waiting, they were frequently subjected to extreme abuses, including torture, rape, and extortion by criminal cartels.

Historically, since the passage of the Refugee Act in 1980, the expectation has been that any person approaching a border official to request asylum would be taken into custody to have their claim adjudicated. This process was supposed to be consistent whether it occurred at an airport, a maritime dock, or a pedestrian lane at a major land crossing. Metering turned this principle on its head by allowing officers to turn people away entirely, effectively closing the door on the asylum process.

Crucially, internal government investigations have revealed that claims of capacity issues were often false. A 2020 report from the DHS Office of Inspector General found that even when public officials were telling migrants to go to ports of entry, they were simultaneously instructing those same ports to deprioritize asylum processing. Officials often misled the public and the media by claiming they were overwhelmed, even when they had empty holding cells and available staff.

The Consequences of Dangerous Policies

By forcing migrants to wait in Mexican border towns for extended periods, the U.S. government created a dangerous environment. These areas are often controlled by criminal elements looking to exploit vulnerable individuals. It is estimated that tens of thousands of migrants have been victimized by cartels after being turned away by U.S. officials.

Furthermore, metering created perverse incentives that fueled corruption. Because the United States shifted the burden of managing waitlists onto Mexican officials, some of those individuals began selling access to American ports of entry. Instead of promoting the rule of law, the policy created a profitable market for criminals to extort money from people who were trying to follow the legal process.

Many migrants who were turned away and found the waitlist system impossible to navigate eventually gave up and crossed the border between ports of entry. They would then surrender to the U.S. Border Patrol. This resulted in a process that was significantly more chaotic than what would have occurred had they been processed at an official port of entry in the first place.

The Path Forward

While it is undeniable that the federal government needs effective tools to manage border capacity during times of high arrival volume, metering was not a neutral tool designed for efficiency. It was a deliberate strategy used to stop migrants from exercising their legal right to seek asylum at a port of entry.

It is clear that Congress needs to reform the broken asylum system. True reform requires flexible and humane procedures for processing individuals who arrive at our borders. If Congress chooses to take up this issue, they must ensure that customs officers are not permitted to adopt these counterproductive and deceptive practices again. The recent Supreme Court decision does not represent a victory for orderly process; it validates arbitrary actions that ultimately undermine the integrity of our legal system.