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Original Date Announced
April 27, 2018Previously widely reported, CBP's "Metering Guidance" is uncovered in the Al Otro Lado v. McAleenan litigation (Case 3:17-cv-02366-BAS-KSC), now Al Otro Lado v. Mayorkas. The memo indicated that "to facilitate orderly processing and maintain the security of the port and safe and sanitary conditions for the traveling public, [Directors of Field Operations (DFOs)] may elect to meter the flow of travelers at the land border to take into account the port's processing capacity." The memo further states that "DFOs may not create a line specifically for asylum-seekers only, but could, for instance, create lines based on legitimate operational needs, such as lines for those with appropriate travel documents and those without such documents." [ID# 37]
2018.04.27 CBP Metering Guidance. pdfEffective Date
June 1, 2018Subsequent Trump-Era and Court Action(s)
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November 19, 2019
Al Otro Lado v. Wolf Order
On November 19, 2019, the court in Al Otro Lado v. Wolf issued a preliminary injunction and provisionally certified a class consisting of “all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. [port of entry] before July 16, 2019 because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.” The court blocked Defendants from applying the Asylum Ban to members of the provisional class and ordered that Defendants apply pre-Asylum Ban practices for processing the asylum applications of class members. The government's appeal is pending a decision at the Ninth Circuit following oral argument on July 10, 2020 (Case No. 19-56417). On January 14, 2021, the court issued an order denying the Government’s emergency motion for a stay of the district court's clarification order pending appeal (Case No. 20-56287) and noted that the preliminary injunction appeal was being held in abeyance.
View Document
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.** -
August 7, 2020
Al Otro Lado et. al. v. Wolf et. al. 3:17-cv-02366
A California federal court certifies a class consisting of asylum seekers turned away ("metered") from ports of entry by CBP officers.
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September 2, 2021
2021.09.02 Al Otro Lado v. Mayorkas Summary Judgement Order
On September 2, 2021, the U.S. District Court for the Southern District of California issued a summary judgment order in Al Otro Lado v. Mayorkas declaring metering policies that turn back asylum seekers at the border unlawful. The court ordered the parties to submit supplemental briefing on remedies by October 1, 2021.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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August 5, 2022
2022.08.05 Al Otro Lado v. Mayorkas Remedies Opinion
On August 5, 2022, the U.S. District Court for the Southern District of California issued a remedies opinion in Al Otro Lado v. Mayorkas concluding that turning back asylum seekers constitutes an unlawful withholding of Defendants’ mandatory ministerial inspection and referral duties under 8 U.S.C. § 1158 and § 1225 in violation of both the Administrative Procedure Act and the Fifth Amendment Due Process Clause. The court held that Garland v. Aleman Gonzalez (Supreme Court, 2022) precluded it from entering an injunction against the metering policy, but granted class-wide declaratory relief.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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Biden Administration Action: Revoked/Replaced
November 1, 20212021.11.01 Memo-Guidance for Management and Processing of Undocumented Noncitizens at Southwest Border Land Ports of Entry
This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry. On November 1, 2021, the Acting CBP Commissioner revoked the policy known as metering, which limited the number of asylum seekers who can be processed each day at designated crossing points along the U.S.-Mexico border.
The memorandum further instructs the Customs and Border Protection Office of Field Operations (CBP OFO) to “consider and take appropriate measures, as operationally feasible, to increase capacity to process undocumented noncitizens at Southwest border ports of entry, including those who may be seeking asylum and other forms of protection.”
View DocumentCurrent Status
Not in effectNovember 1, 2021Acted on by Biden Administration
Original Trump Policy Status
Trump Administration Actions: Agency Directive Change in PracticeSubject Matter: Asylum, Withholding and CAT BorderAssociated or Derivative Policies
- October 12, 2018 U.S. allegedly working with Mexican officials to restrict asylum seekers' access to U.S. border
- November 22, 2019 EOIR General Counsel issues guidance on applying Asylum Eligibility and Procedural Modifications Rule to certain asylum seekers impacted by metering
- October 30, 2020 OIG releases report confirming CBP took steps to limit processing at ports of entry
Pre Trump-Era Policies
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The Immigration and Nationality Act (INA) provides that a person who "arrives" at the border "whether or not at a designated point of arrival ... may apply for asylum."
8 U.S.C. § 1158 - Asylum
Documents
Trump-Era Policy Documents
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New Policy
Original Source:
April 27, 2018 CBP Metering Guidance
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Prior Policy
- Subsequent Action
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Subsequent Action
Original Source:
Order Granting Motion for Class Certification
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Subsequent Action
Original Source:
Al Otro Lado v. Mayorkas Summary Judgement Order
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Subsequent Action
Original Source:
Al Otro Lado v. Mayorkas Remedies Opinion
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Commentary
Original Source:
Amnesty International: Explanation of border turnbacks
- Commentary
Commentary
Amnesty International USA: You Don't Have Any Rights Here
Pushbacks of asylum-seekers are illegal under U.S. law and violate U.S. obligations under international refugee law.
Go to articleAIC|Challenging CBP's Unlawful Practice of Turning Away Asylum Seekers
Class counsel prepared a Frequently Asked Questions resource to address common questions about the court’s order, class membership, and implementation.
Go to articleThe Department of Homeland Security’s “Metering” Policy: Legal Issues
Congressional Research Service report on "The Department of Homeland Security’s 'Metering' Policy: Legal Issues."
Go to article on crsreports.congress.gov