‘Metering’ of Asylum-Seekers at Border Ruled Illegal by Ninth Circuit

The Ninth Circuit Court of Appeals on Wednesday affirmed the since-rescinded “metering” policy, under which asylum-seekers were turned away at the U.S.-Mexico border if Custom and Border Protection officials deemed a crossing to be at capacity, is unlawful.

In the split decision, the panel also upheld the trial judge’s ruling that asylum-seekers who were turned away under the metering policy could not be forced, under a subsequent and since blocked Trump administration policy, to first seek asylum in the country they traveled through to reach the U.S. if they were turned away before that “Asylum Transit Rule” went into effect.

The government wrongly argued that a noncitizen stopped on the U.S.’s doorstep is not eligible to apply for asylum unless they have actually stepped across the border, U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, wrote for the majority.

In that regard, she said, the government misconstrued what it means to “arrive” in the U.S., under the statutory language, in order to seek asylum.

“For a person coming to the United States to seek asylum, the relevant destination is the U.S. border, where she can speak with a border official,” Friedland wrote. “A person who presents herself to an official at the border has therefore reached her destination — she has ‘arrived.'”

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U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, wrote in dissent that the majority’s conclusions were “wrong, troubling, and breathtaking.”

The majority’s interpretation of what it means under the law to arrive in the U.S. for the purpose of seeking asylum imposes on the federal government — for the first time — an obligation to interview asylum-seekers who are still in Mexico, Nelson said.

“More than being wrong, the majority’s conclusion is harmful,” Nelson wrote. “Judicial redlining of statutes, as the majority does here, undercuts Congress’ authority, eliminates citizens’ ability to rely on the law, and erodes democracy, allowing unelected judges to revise the decisions of the people’s representatives.”

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