District Court Applies 5th Amendment to Aliens Outside the U.S.

If ruling stands, the only thing 'expedited removal' would expedite is asylum claims

By Andrew R. Arthur on September 8, 2021

On September 2, Judge Cynthia Bashant of the U.S. District Court for the Southern District of California issued a decision in Al Otro Lado v. Mayorkas. The case had to do with the legality of various procedures that CBP officers have implemented to control the flow of asylum seekers, but the practical effects of her decision are to put illegal entrants in charge of traffic at the Southwest ports of entry, and to expedite the movement of illegal aliens into the United States to make (usually meritless) asylum claims.

CBP’s mission statement is to “Protect the American people, safeguard our borders, and enhance the nation’s economic prosperity”, but you wouldn’t know that to read Judge Bashant’s decision.

Border Patrol agents “safeguard our borders” between the ports, but “enhancing the nation’s economic prosperity” falls on CBP officers in the agency’s Office of Field Operations (OFO), who inspect entrants and goods at the ports of entry. Trucks and trains carry goods between the United States, Mexico, and Canada and that traffic is the border’s lifeblood.

Covid-19 border restrictions limited the number of lawful entrants at the ports of entry last fiscal year, but in the much more typical FY 2019, CBP officers processed more than 680,000 incoming land travelers and 273,000 vehicles — the majority at the Southwest border. On a daily basis.

Most of those travelers were U.S. citizens or aliens who had documents to enter the United States, but on an average day in FY 2019, CBP officers apprehended more than 2,350 persons at the ports of entry and denied entry to 790.

As I have explained many times before (usually in the context of Border Patrol’s apprehension of illegal migrants), aliens who enter or attempt to enter the United States illegally or without proper documents are subject to “expedited removal” under section 235(b) of the Immigration and Nationality Act (INA).

Pursuant to that provision, such aliens can be quickly removed from the United States without appearing before an immigration judge.

If, however, an alien in expedited removal requests asylum or claims a fear of harm if returned home, CBP must hand the alien over to an asylum officer from USCIS to determine whether he or she can demonstrate a “credible fear” of return. Credible fear is essentially a screening standard to determine whether the alien may be eligible for asylum.

If the asylum officer or an immigration judge finds that the alien has a credible fear (as they did 83 percent of the time between FY 2008 and FY 2019), the alien is placed into removal proceedings to apply for asylum (where just 17 percent of those asylum applications were granted during the same period). If not, the alien is to be removed quickly.

The expedited removal process is intended to keep aliens out of the United States, not to give them a pathway in. Judge Bashant’s order turns that process on its head, however. Some quick facts will explain how.

Most ports of entry sit some distance from the physical boundaries of the United States, separated by a bridge or some short distance of land that a traveler must traverse to get to the CBP port of entry.

Beginning under the Obama administration in February 2016 at the San Ysidro port of entry, CBP introduced a process called “metering” near the physical boundary and the ports to limit the number of aliens who did not have documents to enter the United States at any given time.

Port facilities are not terribly large, and aliens in expedited removal require much more processing time than lawful entrants with proper documents. Further, aliens in expedited removal are also supposed to be detained throughout the entire process, and the ports don’t have a lot of detention space.

The aliens who were not allowed to continue to the ports were referred to as “turnbacks”, and metering was done in conjunction with Mexican officials on the other side. Turnbacks were not precluded from presenting their credible fear claims. Rather, they were given a time to return to present those claims.

That metering process was extended to other Southwest border ports as the number of illegal entrants grew. The court rather matter-of-factly asserted “After Hurricane Matthew struck in October 2016, the number of arrivals increased”, ostensibly oblivious to the fact that cyclones are not a basis for asylum.

In any event, in the wake of that storm, CBP had planned to expand its detention facilities at the ports (which would have allowed the agency to take in more aliens without documents). But those plans were put on hold the day after Donald Trump was elected president. CBP thereafter wanted to expand its metering efforts further, which Obama’s DHS secretary, Jeh Johnson, quickly blessed.

Metering was done in a hodgepodge fashion, and in certain instances, CBP officers were placed not at the border proper, but between the border and the port in the United States. That said, in Laredo at least the process succeeded in dissuading illegal migrants from coming to the port, as metering was discontinued there.

Eventually, the metering process became enshrined in various CBP and DHS guidance documents. Notably, guidance from 2020 specifically “cautioned immigration officers not to ‘discourage any traveler from waiting to be processed, claiming fear of return, or seeking any other protection’”, so it was not as if the agency’s intent was to preclude valid claims.

A group of plaintiffs challenged this process, alleging that turning back asylum seekers, even briefly, violates CBP’s inspection responsibilities under the INA, the Administrative Procedure Act, the Fifth Amendment to the U.S. Constitution, and the Alien Tort Statute.

The government countered, arguing that metering did not violate the INA, is constitutionally lawful, and does not violate obligations of the U.S. government.

The court’s analysis is unduly complex, but it comes down to this: Under section 235 of the INA, CBP has an obligation to inspect applicants for admission to the United States. Expedited removal under that provision is a process by which those applicants for admission can be removed from the United States, but, as noted, it also requires the agency to refer aliens who claim a fear of return or request asylum to asylum officers for a credible fear interview.

In addition, section 208(a)(1) of the INA permits “[a]ny alien who is physically present in the United States or who arrives in the United States” to apply for asylum.

The Court concluded that sections 208 and 235 apply to aliens “who may be physically outside the United States but who are in the process of arriving at a” port of entry. Accordingly, it found that the temporary turnback of those aliens to a time at which they could apply for admission (and seek asylum) violates their Fifth amendment due process rights.

The extraterritorial application of the Fifth amendment to aliens is an issue that has never, to the best of my knowledge, been applied this broadly. And when I say “to the best of my knowledge”, I mean I have never heard of it, and the court does not cite to any precedent applying it in this manner, either.

Nor, respectfully, do the statutes in question appear to support the court’s findings. For example, section 235(a)(1) of the INA states:

An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.

By its plain language, aliens who have been turned back before they touch the territorial boundaries of the United States are neither “present in the United States”, nor are they arriving “in” this country. They are at the front door, and although they may be knocking, they haven’t been let in (yet).

The operative language in section 235(a)(3) of the INA states: “All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.”

The term “applicants for admission or otherwise seeking admission” traditionally has meant standing in the port of entry, or in a CBP processing facility after being apprehended by Border Patrol — not outside of the United States and attempting to get in.

This is a seemingly simple proposition for Judge Bashant because the aliens in question were turned away feet from the territorial boundaries of the United States, but there are three practical considerations that the court elides.

First, what if 100, 1,000, 10,000, or 100,000 aliens without documents showed up simultaneously at, say, the Paso del Norte Bridge in El Paso and demanded that they be allowed to apply for admission (despite the fact that they are facially inadmissible), and thence, asylum. Would CBP be forced to allow them all to proceed to the port?

Under the court’s reasoning, yes, even though they would overwhelm CBP’s capacity to process them and would bring all lawful cross-border traffic to a halt. If I were a smuggler, I know what I would tell my “clients” to do. If I were a trucker hauling perishable vegetables, on the other hand, I would be peeved.

Second, what if the United States reaches a diplomatic agreement with the government of Mexico (or Guatemala, for that matter) to block third-country asylum seekers from crossing its southern borders en route to the United States. Do those foreign nationals, who have no ties whatsoever to the United States have a Fifth amendment right to apply for admission? Again, the inevitable answer is “yes”.

Third, what if a foreign national who wants to apply for asylum in the United States shows up at CBP preclearance at Shannon Airport in Ireland or Abu Dhabi International Airport without documents? Do they have to be allowed onto the aircraft that would take them to the United States?

They might be thousands of miles from the United States, but wouldn’t they enjoy the same Fifth Amendment rights that aliens who are standing feet away from the territorial boundaries have? Logically, they would have more, because those preclearance sites are the functional equivalent of a land-border port of entry.

Taking that example one step further, what if CBP trains airline gate and ticket agents on the appropriate documents that foreign nationals need to be admitted to the United States. Those agents are “agents” of the United States government in that scenario. Does a Fifth amendment violation occur if they refuse a foreign national to get on a flight because they don’t have a visa? If not, why not?

Through metering, CBP attempted to control the flow of aliens without proper documents who were seeking admission, in order to preserve the agency’s ability to facilitate lawful cross-border traffic while ensuring those aliens could still apply for asylum. One district court judge has unraveled the whole process, and thus has placed inadmissible entrants in charge of traffic at the Southwest border ports.

Worse, if Judge Bashant’s decision stands, it would transform expedited removal — which was intended to accelerate the movement of aliens without proper entry documents out of this country — and into an expressway for inadmissible aliens into the United States.