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~ ~Research Service
The Department of Homeland Security's
Metering Policy: Legal Issues
Updated October 15, 2021
Generally, a non-U.S. national (alien, as the term is used in the Immigration and Nationality Act [INA])
who arrives in the United States without valid documentation is subject to a streamlined, expedited
removal process, but may pursue asylum and related protections if the alien demonstrates a credible fear
of persecution in his or her country of origin. Before the Coronavirus Disease 2019 (COVID-19)
pandemic, the Department of Homeland Security's (DHS's) U.S. Customs and Border Protection (CBP)
had been limiting the number of asylum seekers who were processed each day at designated ports of entry
along the U.S. southern border. Aliens affected by this policy generally had not yet reached the U.S.
border and were required to remain in Mexico until CBP decided it could process them. This policy-
known as metering-sought to address an unprecedented rise in asylum requests, as well as safety
and health concerns resulting from overcrowding at ports of entry. The policy has led to long wait times
and overcrowded conditions on the Mexican side of the border, and has arguably incentivized attempts to
illegally cross the border between ports of entry.
In response to the COVID-19 pandemic, CBP in March 2020 implemented a policy that largely shut down
asylum processing for many aliens arriving at the U.S. border (sometimes referred to as the Title 42
policy). The policy remains in effect, but does not apply to certain categories of aliens (e.g.,
unaccompanied minors and other individuals who CBP officials determine should be exempted for
humanitarian reasons). As a result, since March 2020, CBP has largely suspended metering, and most
asylum processing waitlists have been closed to aliens seeking to enter the United States after that date.
To date, there has only been one challenge to metering that has resulted in a decision by a federal district
court, though litigation in that case remains ongoing. In 2017, a group of asylum seekers and advocacy
organizations sued in the U.S. District Court for the Southern District of California to challenge CBP's
metering policy. Recently, the district court ruled in Al Otro Lado v. Mayorkas that metering violates INA
provisions that require immigration officers to inspect and process asylum seekers arriving at the U.S.
border, and infringes on asylum seekers' constitutional right to due process. The court has not yet
determined the appropriate remedy in the case, and has not yet assessed what effect the current Title 42
restrictions on asylum processing may have on the appropriate remedy. Regardless, it seems likely that
the case will be appealed by the government.
Congressional Research Service
https://crsreports.congress.gov
LSB10295
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govegoc0001&div=1&collection=&method=preview&ext=.png&size=3)