The Office of Inspector General (OIG) has released a report from its review to determine whether U.S. Customs and Border Protection (CBP) was turning away asylum seekers at the Southwest Border ports of entry.
In May 2018, Department of Homeland Security (DHS) and CBP leaders anticipated an increase in undocumented aliens seeking entry at the southern border. In response, the leaders urged undocumented aliens seeking protection under U.S. asylum laws (asylum seekers) to enter the United States legally at ports of entry rather than illegally between ports.
At the same time, OIG reports, the leaders asked CBP for the number of undocumented aliens that would likely be turned away if all ports conducted “Queue Management,” a practice that posts CBP officers at or near the U.S.-Mexico border to control the number of undocumented aliens entering U.S. ports of entry. The watchdog’s report states that after learning that a number of aliens could be prevented from entering ports every day, in June 2018, then-DHS Secretary Kirstjen Nielsen authorized the practice. “Nielsen also informed CBP ports that while processing undocumented aliens is a component of its mission, they should focus on other priorities, including detection and apprehension of narcotics and currency smugglers”, the report continues.
However, the OIG report also says that Queue Management for the 2018 surge was authorized for the port directors by CBP Executive Assistant Commissioner for Field Operations Todd Owen in April 2018. At this time, Owen reported directly to then Acting Commissioner Kevin McAleenan who would have authorized this action. This means that CBP was already continuously implementing Queue Management locally at Southwest Border ports before DHS made enquiries about potential impacts.
McAleenan spoke to the Los Angeles Times about immigration policy in June 2018. His responses indicated that Queue Management was already implemented “from time to time” for undocumented migrants based on capacity, and that there had been no policy change for documented migrants.
OIG’s review found that CBP took several additional actions to limit the number of undocumented aliens processed each day at Southwest Border land ports of entry. For instance, the watchdog found that without prior public notice, seven ports of entry stopped processing virtually all undocumented aliens, including asylum seekers. Instead, CBP redirected them to other port locations. This redirection contravenes CBP’s longstanding practice to process all aliens at a “Class A” port of entry or reclassify the port of entry.
Although asylum seekers legally must be processed once physically within the United States, OIG found CBP staff turned away asylum seekers after they had already entered the United States. OIG also observed CBP officers telling aliens the port was at capacity and did not have the capability to process them, regardless of actual capacity and capability at the time. Also, at two other ports under review, CBP had stopped using blocks of available holding cells, allowing those cells to sit empty while asylum seekers and other undocumented aliens waited in the Queue Management lines in Mexico.
By October 30, 2018, the number of undocumented aliens waiting outside the ports to be processed grew to more than 3,000. As the lines grew longer, some waiting as long as two days, asylum seekers and other undocumented aliens crossed the border illegally, between ports of entry, where U.S. Border Patrol is responsible for apprehending and holding them.
OIG interviewed 17 aliens who either were in detention or were recently released, five of whom said after growing frustrated with Queue Management and redirection practices at ports of entry, they decided to enter the United States illegally. OIG also interviewed representatives from several non-profit and non-governmental organizations who stated they had similar concerns.
In fiscal year 2018, CBP Southwest Border ports processed 38,269 undocumented aliens seeking asylum, representing approximately one-third of the nearly 125,000 undocumented aliens who arrived at U.S. ports of entry that year.
While OIG has highlighted 2018 activities, it is worth considering events prior to this, as the watchdog itself does in the background of the full report. A former senior CBP official told Homeland Security Today that CBP has previously adjusted Southwest Border port operations to deal with surges of undocumented migrants including asylum seekers. And OIG’s report discusses how, during the Obama Administration, CBP utilized Queue Management, working with the Mexican government to deal with Haitian asylum seekers. During this time, they were prevented from crossing and put on a waiting list remaining on the Mexican side until there was capacity to process them when they would then be allowed to enter the port of entry. The former senior CBP official told us that Queue Management was utilized at least as early as 2016 and that a form of it was probably also used in certain ports during the unaccompanied minor surge in 2014 when ports were over capacity. It is conceivable that examples of this practice can be found as far back as CBP’s 2003 creation and to even to its legacy agencies before that to deal with flows and keep port operations going.
OIG’s 37-page report makes three recommendations. First, that CBP resumes processing undocumented aliens at the seven ports of entry currently redirecting them to other ports, or formally redesignate the ports to exclude undocumented aliens. Second, that CBP should provide written guidance and training to CBP personnel at ports of entry relating to the proper handling of aliens who are physically present in the United States and indicate an intention to apply for asylum. Finally, OIG said CBP should evaluate whether it can more efficiently use available holding spaces to process undocumented aliens, including asylum seekers.
CBP concurred with the second and third recommendations and has already taken steps to address these, although OIG says some more effort is still required. In response to the first recommendation, CBP officials said their decision to redirect the processing of undocumented aliens at the seven ports of entry to other ports depended on operational capacity and the resources available to execute its primary mission of securing the border. Additionally, CBP stated that specific dynamics at each port of entry affect the port’s capacity to process and hold aliens without documents and each port director must maintain a discretionary balance between processing aliens and facilitating trade, travel, and counter-narcotics missions. OIG countered that CBP must either show it is processing undocumented aliens at the seven ports of entry currently redirecting them to other ports, or formally reclassify those ports consistent with long-established procedures.