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In the spring of 2023, I travelled to northern Mexico to report on the humanitarian consequences of US policies aimed at restricting access to asylum. I wrote an article explaining how actions taken by both the first Trump administration and the Biden administration stranded vulnerable people in dire living conditions in dangerous Mexican border cities.
Now, Senator Ted Cruz – a Republican who has long supported a hardline approach to immigration – has cited that article, taking it grossly out of context, in an amicus brief to the US Supreme Court, arguing that the Court should make it possible to reinstate one of the very same policies my reporting exposed the humanitarian consequences of.
The case is called Noem v. Al Otro Lado, and it is one of the most consequential proceedings related to immigration on the Court’s current docket. Oral arguments will take place on 24 March. At stake is whether the US government can block people forced to flee their countries because of various forms of persecution from seeking protection at ports of entry along the southern border.
People coming to the border to seek asylum is not a crisis in and of itself: The actual crisis is the immense human suffering caused by metering and other similar policies restricting access to asylum that have followed in its wake.
Senator Cruz cites my article, quoting a snippet of its title, to claim that overcrowding caused by people seeking asylum produced an “unrelenting humanitarian crisis” at ports of entry in 2018. He goes on to argue that the policy being examined by the Court, known as metering, was a “necessary and beneficial tool” to address this crisis.
It is clear that neither Senator Cruz nor his staff who helped compile the amicus brief actually read my article past the title. If they had, they would have known that my reporting reveals the exact opposite to be true. People coming to the border to seek asylum is not a crisis in and of itself: The actual crisis is the immense human suffering caused by metering and other similar policies restricting access to asylum that have followed in its wake.
Senator Cruz’s argument mirrors the one being made by the government in Noem v. Al Otro Lado, which is attempting to persuade the Justices of the Supreme Court that the Executive Branch is being deprived of “a critical tool for addressing border surges and for preventing overcrowding at ports of entry along the border”. Like Senator Cruz’s brief, the case being made is based on a willful distortion of the facts, and the Justices of the Supreme Court should not allow themselves to be misled.
Creating a false justification
Under US law, any non-citizen who arrives at a port of entry has the right to seek asylum. Metering is the practice of Customs and Border Protection (CBP) stationing officers at the midway points of the bridges and walkways connecting Mexico to the United States to turn back would-be asylum seekers before they set foot on US soil, blocking them from exercising that right. The policy had been used sporadically since 2016, but in 2018 the Trump administration rolled it out across the entirety of the southern border.
Where the government and Senator Cruz’s arguments have some merit is in the fact that there was an increase in the number of people approaching ports of entry to seek asylum.
Rather than mobilise resources to manage the increase, however, CBP placed an arbitrary daily limit on the number of people allowed to cross into the US to claim asylum. At the same time, the Department of Homeland Security, which CBP is a part of, actively deprioritised asylum processing at ports of entry and diverted resources elsewhere. In doing so, it was able to claim there was a lack of capacity to process asylum seekers, and then use that to justify the need to keep metering in place.
Perversely, metering created an incentive for people to try to enter the US between ports of entry, and evidence suggests that clandestine crossings by those barred from seeking asylum at the border actually increased.
At the same time, tens of thousands of people turned away by CBP – including families, women, and children – ended up stranded in northern Mexico, waiting for a chance to set foot in the US and present their cases. The effects of the policy were immediately clear. “By turning away people seeking refuge, CBP continues its practice of ignoring threats to human safety and refusing to follow the basic premise of asylum law,” a spokesperson for the American Civil Liberties Union said at the time.
In 2024, in a case brought by the immigrant rights organisation Al Otro Lado and affected asylum seekers, a federal court (the Ninth Circuit Court of Appeals) ruled that metering did in fact violate US immigration law. By that point, the Biden administration had rescinded the policy, but the ruling was still significant because it made it unlawful for future presidential administrations to reinstate it.
After returning to office last year, the Trump administration asked the Supreme Court to review the Ninth Circuit’s decision, which is the case the Court will hear on 24 March.
Crisis of denied asylum access
Metering was the first in a long line of policies put in place by the first Trump administration, the Biden administration, and the second Trump administration aimed at restricting – and now ending – the ability to seek protection at the southern border to try to deter people from coming to the US. Most, if not all, of those policies are also being challenged in court.
At the time of my reporting trip in 2023, the Biden administration had replaced metering with a cellphone application for asylum seekers to use to schedule appointments at ports of entry. While creating a pathway for people to eventually be able to enter the US and initiate the asylum process, its immediate effect in northern Mexico was almost identical.
Tens of thousands of people ended up stranded for months on end waiting to try to schedule an appointment, and then for their date to arrive. CBP officers were still stationed at the mid-way points of bridges and walkways, turning back anyone without an appointment. Human Rights Watch called it “a system of digital metering”.
I visited makeshift camps on the banks of the Rio Grande in the Mexican cities of Matamoros and Reynosa where thousands of people from Venezuela, Cuba, Haiti, Honduras, El Salvador, and elsewhere were living. Many had fled after receiving death threats, seeing family members killed, facing extortion by gangs, or because they feared imprisonment for political activities. Returning home was not an option.
On the doorstep of the US, they were sleeping in flimsy camping tents and shelters cobbled together from cardboard, tarps, and sticks. Things as basic as bathrooms, food, and medical care were either scarce or non-existent. Violence, exploitation, and abuse stalked the people I spoke to.
American citizens need to decide whether they still want the US to uphold its legal and moral commitments to being a place of refuge for people forced to flee.
In the long history of immigration at the US-Mexico border, camps like the ones I visited never existed before. The first ones cropped up in 2018 when metering was introduced border-wide. Since then, the organisation Human Rights First has documented over 16,000 reports of murder, kidnapping, torture, rape, and other abuses committed against people stranded in northern Mexico by US policies.
This was not a crisis caused by people forced to flee their homes, as the government and Senator Cruz have made it out to be in their arguments to the Supreme Court. It was one created by the fact that the country where these people thought they might find safety had closed the door.
If the Supreme Court finds that metering is incompatible with US law, that alone will not fix the crisis of impeded asylum access at the US-Mexico border. The legal challenges to subsequent policies still need to make their way through the courts. Perhaps most importantly, American citizens need to decide whether they still want the US to uphold its legal and moral commitments to being a place of refuge for people forced to flee.
But if the Court sides with the government and Senator Cruz, it will arm this and future presidential administrations with yet another powerful tool to prevent people from exercising their legal right to seek asylum, dealing a significant blow to any future hope of unwinding the current harmful system and replacing it with a more effective and humane approach to managing immigration at the southern border.
That is far too important of a decision to be made based on a wilful distortion of the facts.
