Court Allows Turnbacks of Asylum Seekers Without CBP One Appointments to Continue

Today a federal court in California denied a preliminary injunction in a legal challenge to the Biden administration’s policy of turning back asylum seekers who request protection without first obtaining an appointment via the government’s CBP One smartphone app. Citing a recent Supreme Court ruling, the Court found it lacked the authority to issue the injunction, which would have required the government to comply with its own policy guidance. In November 2021, the Department of Homeland Security issued guidance which clearly states that the government cannot require asylum seekers to secure an appointment before approaching a port of entry along the U.S. southern border. Although the government’s filings in this case confirm that this guidance has been disseminated to border officers, officers routinely act in direct violation of their own agency guidance.

Today’s ruling allows the administration to continue unlawful turnbacks that place people seeking safety in harm’s way. But it does not address the merits of the pending lawsuit challenging the legality of the government’s actions. The Court ruled only that it lacked the authority to issue a preliminary injunction on this claim. However, nothing in the decision prevents the Biden administration from ending the illegal turnbacks now. The administration should follow its own policies and process people seeking asylum at the southern border, regardless of whether they are lucky enough to obtain an appointment. We will continue to fight for the rights of our plaintiffs and all people in search of refuge.

The lawsuit was brought on behalf of Al Otro Lado, Haitian Bridge Alliance, and nine individual plaintiffs seeking to represent a broad class of asylum seekers turned back at ports of entry. The organizations and asylum seekers are represented by the Center for Gender & Refugee Studies, the American Immigration Council, and the Center for Constitutional Rights, along with Mayer Brown LLP and others.

In addition to the claim regarding the government’s failure to comply with its own guidance, the lawsuit argues that the government’s policy of turning back asylum seekers without CBP One appointments violates U.S. law, asylum seekers’ due process rights, and the United States’ obligations under international law, which prohibit the government from returning refugees to countries where they face persecution or torture. 

Under the turnback policy, people seeking asylum have been denied access to the U.S. asylum process, turned away and left stranded in Mexican border cities where violence against migrants is on the rise. Plaintiffs in the case include families, children, and adults who, upon being forced back to Mexico, experienced violent assaults and threats, were forced into hiding, and became homeless. Several plaintiffs are Mexican nationals, including victims of persecution by the Mexican government itself, who were returned to the very country they were trying to escape.

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Al Otro Lado provides holistic legal and humanitarian support to refugees, deportees, and other migrants in the US and Tijuana through a multidisciplinary, client-centered, harm reduction-based practice.  They engage in individual representation, human rights monitoring, medical-legal partnerships, and impact litigation to protect the rights of immigrants and people seeking asylum.

The Haitian Bridge Alliance also known as “The BRIDGE” is a 501(c)(3) grassroots nonprofit community organization that advocates for fair and humane immigration policies and provides migrants and immigrants with humanitarian, legal, and social services, with a particular focus on Black people, the Haitian community, women and girls, LGBTQIA+ individuals, and survivors of torture and other human rights abuses.

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. In January 2022, the Council and New American Economy merged to combine a broad suite of advocacy tools to better expand and protect the rights of immigrants, more fully ensure immigrants’ ability to succeed economically, and help make the communities they settle in more welcoming. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.

The Center for Gender & Refugee Studies defends the human rights of courageous refugees seeking asylum in the United States. With strategic focus and unparalleled legal expertise, CGRS champions the most challenging cases, fights for due process, and promotes policies that deliver safety and justice for refugees.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org. Follow the Center for Constitutional Rights on social media: Center for Constitutional Rights on Facebook, @theCCR on Twitter, and ccrjustice on Instagram. 

As the first major law firm to develop and implement a pro bono strategic plan, Mayer Brown has long deployed its considerable resources to offer access to the justice system and confront systemic problems around the world where it can have a major impact. To that end, in 2020 the firm launched Project Equity to combat systemic racism and promote racial equity. Visit: https://www.mayerbrown.com.