TIJUANA, Mexico — A group of 16 Central American migrants approached an obscured section of the towering metal fence separating Mexico and the U.S. near Tijuana beach shortly before midnight. This section, known as "the gulch," has no barbed wire, so some of the adults scaled the barrier and jumped over. Thinner women and children squeezed through the bars, spaced about a foot apart.
They’d been on American soil for less than 10 minutes when two Border Patrol agents approached. “Help us,” a Honduran woman pleaded.
Instead, the agents pressured the migrants to return to Mexico by telling them they needed to add their names to an unofficial waitlist of asylum seekers in Tijuana and enter the U.S. legally.
“Take 10 minutes and cross back over [into Mexico],” one agent told the group in Spanish that night in early December. “It’s full here. At least in the shelters [in Tijuana] you have blankets, a place to sleep.”
The highest levels of the agency have parroted the same idea. On Monday, Customs and Border Protection tweeted that "the processing system at CBP and our partner agencies has hit capacity." Immigration lawyers and advocates, however, told NBC that narrative is a lie.
Federal law allows any migrant who reaches U.S. soil to apply for asylum, regardless of whether they entered the country legally. A federal appeals court affirmed that right earlier this month when judges struck down President Donald Trump’s proposed ban on asylum for migrants who enter the U.S. illegally.
But that’s not happening in the real world, at least for those climbing over or squeezing through the fence near Tijuana.
“There is the law on the books and then what it looks like on the ground. And it gets messy.”
“There is the law on the books and then what it looks like on the ground. And it gets messy,” said Pratheepan Gulasekaram, a professor of constitutional and immigration law at Santa Clara University School of Law.
Asking for help
While President Trump’s proposed ban on asylum claims winds its way through the court system, some Border Patrol agents, in practice, are already carrying out Trump’s desired policy by turning back asylum seekers who cross into the U.S. illegally.
After the two agents apprehended the group of 16, two of the men jumped the fence back into Mexico to avoid getting caught. A few others huddled in bushes on the American side. The rest of the group stood flat-footed in hopes of turning themselves in.
The agent said the migrants needed to enter the United States the “correct way” by adding their names to the list of asylum seekers in Tijuana waiting to enter at the San Ysidro Port of Entry. He threatened that if they didn’t return to Mexico, they would “spend a very cold night outside.”
“It doesn’t matter. Help us,” the Honduran woman pleaded.
But the agent didn’t respond to that plea. After about 10 minutes of the agents pressuring the migrants to turn back, the group began crossing into Mexico the way they’d left.
“As I told you, the correct way is to go to the ports of entry,” the agent said as the migrants retreated. “Get a number and do it the right way."
While it isn’t unusual for Border Patrol to tell groups of single male migrants to jump back over the fence and return to Mexico, it's uncommon for agents to take that approach with groups that include women and children asking for help.
“It’s purely against U.S. asylum law, which says if you are in U.S. territory you have the right to seek asylum.”
“This is the first time I’ve heard of Border Patrol turning back a family with small children in U.S. territory clearly saying ‘help,’” said Stephanie Leutert, director of the Mexico Security Initiative at the University of Texas at Austin. “It’s purely against U.S. asylum law, which says if you are in U.S. territory you have the right to seek asylum.”
Customs and Border Protection didn’t respond to a request for comment about the incident, but the agents' behavior illustrates the gap between the letter of the law and how it's applied on the ground.
To cross into the U.S. illegally and ask for asylum, migrants need to use specific words to trigger the process, immigration lawyers told VICE News. But many don’t know exactly what to say, and Border Patrol agents can use that as an excuse to turn them away.
Bill Hing, director of the immigration and deportation defense clinic at the University of San Francisco School of Law, said that the interaction between the migrants and the agents was worrisome but not necessarily illegal. Migrants need to explicitly ask for asylum or say they fear for their life or safety to trigger what’s known as a credible fear interview — the first step in the asylum process.
“What the agents did was suspect,” Hing said. But, he added, “the asylum seekers have to say something more than ‘Help me.’ They have to say something along the lines of, ‘I am here to apply for asylum or I am afraid to go back to my home country.’”
Some experts, however, say the words don’t matter as much as the intent.
“By turning back asylum seekers on U.S. soil, Border Patrol clearly violated U.S. law,” said Savitri Arvey, a researcher at the Center for U.S.-Mexican Studies at the University of California San Diego. “They obviously understood that these migrants were attempting to request asylum because they redirected them to the list.”
Border Patrol agents are required to speak basic Spanish, and most agents team up with one native Spanish speaker. But if a migrant who wants to ask for asylum gets scared and freezes up, there’s no obligation to provide them with a credible fear interview. The border agents also have enormous discretion and power to decide whether someone is asking for asylum.
Gulasekaram, the professor of constitutional and immigration law at Santa Clara University School of Law, said it’s not “technically illegal” for border agents to encourage or direct migrants to seek asylum at a port of entry. But it’s incorrect and probably illegal for the agents to tell asylum seekers that adding their names to the list there is the only way to seek asylum — at least until the courts rule in favor of Trump’s proposed policy.
Take a number
The "list" refers to a notebook that contains the names of thousands of asylum seekers in Tijuana waiting to legally present themselves to Customs and Border Protection. Migrants must request a number to get on the list, which began earlier this year as a way to deal with the massive bottleneck in processing at the border.
The list now has a backlog of more than 5,000 people. Migrants who arrived with the caravans over the past month are near the end of the list and will likely wait at least two to three months for their numbers to be called.
The long wait times have led to desperation, compelling many migrants to decide to cross illegally into the U.S and seek asylum that way.
“I wanted to turn myself in.”
“I wanted to turn myself in,” said the Honduran woman who’d pleaded with the border agents.
VICE News spoke with her after she crossed back into Mexico. She asked to remain anonymous because she was worried that being identified would hurt her chances for asylum down the road.
The woman had already added her name to the list of asylum seekers but couldn’t fathom three months of waiting for her number to be called. She was living in a tent in Tijuana with her three children. Her 7-year-old son is mentally disabled and has hypoglycemia, a potentially dangerous condition caused by low blood sugar levels. And it’s impossible to give him the right diet relying on donated food.
She fled Honduras because her teenage daughters had been abused and to seek help for her disabled son. “In Honduras, people discriminate against him. They see a kid like him as stupid. But the doctor told me he has the capacity to learn.”
Now that the border agents had rejected her attempts to apply for asylum, she wasn’t sure what to do. "I don't know if I'll try again, because if they were going to help us, they would have done it already,” she said.
Like the woman, many migrants attempting to cross into the U.S. have no idea about the shifting legal intricacies of who can request asylum and what key words they need to say to border agents to trigger a claim. One woman, named Mary, sat on a rock hunched over and cried silently after reluctantly crossing back into Mexico.
She said she’d left behind three daughters in Honduras. She had already added her name to the list of asylum seekers at the San Ysidro Port of Entry but couldn’t wait several months for her number to come up. She said she needed to start working so she could make money to send home.
“I have to provide food for my daughters,” she said. “I’m an only mom and they depend on me.”
As for what’s next?
“We will come back another day,” she said.
Cover image: A Honduran migrant helps a youth squeeze through the U.S. border wall over to San Diego, California, from Playas in Tijuana, Mexico, Wednesday, Dec. 12, 2018. The group of Honduran migrants turned themselves in to U.S. Border Patrol agents in order to apply for asylum. (AP Photo/Moises Castillo)