June 28, 2023 －Today two immigrant rights groups and a group of asylum seekers filed a class action lawsuit in federal court challenging the Biden administration’s unlawful policy of turning back individuals seeking asylum at ports of entry along the southern border. The lawsuit challenges the administration’s policy and widespread practice of requiring an advance appointment via the government’s CBP One smartphone app in order to present at a port and seek asylum.
The lawsuit was brought on behalf of Al Otro Lado, Haitian Bridge Alliance, and 10 individuals seeking to represent a broad class of asylum seekers turned away at ports of entry and denied the opportunity to seek asylum. 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.
Under the government’s new turnback policy, individuals who cannot secure a CBP One appointment are unlawfully turned away and denied the opportunity to access the U.S. asylum process altogether, leaving them stranded in encampments and shelters in Mexican border cities that are so violent the State Department limits employee travel in these regions.
On May 12, 2023, the Biden administration promulgated a rule that established a sweeping ban on asylum at the U.S.-Mexico border. One of the few ways asylum seekers can avoid the ban is by scheduling a CBP One appointment at a port of entry to seek asylum. As a practical matter, CBP One is now the exclusive means by which most people at the southern border can seek asylum. Though the rule was recently struck down as unlawful, it remains in effect as that case makes its way through the courts. The government has given no indication that it will change its policy of turning back asylum seekers who do not have a CBP One appointment, regardless of whether the rule remains in effect.
This lawsuit argues that the government’s policy of turning back asylum seekers who do not have a CBP One appointment violates U.S. law, the government’s own guidance, 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.
The lawsuit charges that, since its inception, the CBP One app has been inaccessible to the most vulnerable and marginalized people seeking safety at the U.S.-Mexico border. Only those who are literate in one of the few languages the app supports and have a relatively new smartphone, a reliable internet connection, and electricity are able to successfully navigate the app. Even in the best of circumstances, CBP One is notoriously glitchy, and its discriminatory facial recognition technology has prevented many darker-skinned and Black migrants from obtaining an appointment. Some asylum seekers have spent months desperately trying to secure an elusive CBP One appointment, which can only be scheduled while the user is physically present in parts of Mexico notorious for high levels of violence against migrants.
The lawsuit documents numerous cases in which asylum seekers unable to obtain CBP One appointments requested asylum at a port of entry, only to be turned away by border officers. The plaintiffs include parents of small children who are now languishing in shelters, afraid to even venture outside given the dangers that await migrants in Mexican border towns. Several of the plaintiffs are Mexican nationals who have been left stranded in the very country they are desperately trying to flee. As they wait for the CBP One app to work and an appointment to materialize, they fear for their lives.
“I find it difficult to explain to asylum seekers and our staff, many of whom have been impacted by illegal U.S. border policies themselves, how despite the fact that a federal court ruled almost two years ago that turning asylum seekers away from U.S. ports of entry is illegal, we must re-litigate this issue today,” said Nicole Elizabeth Ramos, Director of Al Otro Lado’s Border Rights Project. “As confirmed by an Office of Inspector General oversight report, Customs and Border Protection has the capacity to process asylum seekers who are arriving at ports of entry – what they lack is the will to do what the law requires of them. So here we are today, arguing the same point we have argued for years, that access to the asylum process at U.S. ports of entry is a fundamental right. Only today we are more tired, and even more saddened, thinking about the many human beings who have lost their lives, turned away by a government that they hoped would protect them.”
“HBA staff, many of whom are Black migrants themselves, speak every day with Haitian and other Black asylum seekers at the border who have been stranded in unbearable conditions for many months with no hope as a result of the CBP One turnback policy,” said Nicole Phillips, Legal Director at Haitian Bridge Alliance. “Black asylum seekers stand out at the border because of their skin tone and racial identity, and are often unhoused and stranded in areas where they can become targets of discrimination and violence. Our staff has had to bury many Haitian asylum seekers who have been killed or died of medical neglect on the Mexican side of the border while waiting to enter the United States.”
“The Biden administration’s new turnback policy is just the latest manifestation of the U.S. government’s multi-year effort to block access to asylum at the southern border, which dates back to at least 2016,” said Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies (CGRS). “This court has already ruled unlawful a previous turnback policy, under which prior administrations coordinated with Mexican officials to implement a ‘metering,’ or waitlist, system. The new policy presents the same fundamental problems. Asylum exists to protect people fleeing imminent threats to their lives, who cannot safely wait in Mexico to request protection. By gatekeeping asylum behind an inaccessible smartphone app, the turnback policy violates our laws, makes a mockery of our asylum system, and leaves the most marginalized refugees behind.”
“Seeking asylum at a port of entry is a right protected by our domestic and international laws and cherished as one of our fundamental American values. Yet, for years, our government has turned its back on asylum seekers arriving at the southern border,” said Kate Melloy Goettel, Legal Director of Litigation at the American Immigration Council. “The exclusive use of the CBP One app to seek asylum is a cruel and disingenuous measure to keep our southern border closed to the most vulnerable asylum seekers.”
“The guise of innovation cannot mask the United States’ core antipathy toward migrants seeking safe haven at our borders,” said Angelo Guisado, a Senior Staff Attorney at the Center for Constitutional Rights. “We will not allow CBP One to subvert the fundamental human rights we consecrated long ago.”
“Mayer Brown is honored to work with our co-counsel in bringing this important litigation to vindicate the rights of vulnerable people seeking safe haven in the U.S.,” said Ori Lev, Partner at Mayer Brown. “The government’s continued policy of turning back asylum seekers—in contravention of the government’s own guidance and U.S. and international law—is shameful. We look forward to vindicating the plaintiffs’ rights.
In September 2021, a photo went viral of Mirard Joseph, a Haitian asylum seeker who was being chased and lashed at by an armed border patrol officer on horseback at the border.
Mr. Joseph was one of at least 15,000 asylum seekers, overwhelmingly Haitians, held by US immigration in an encampment at the border in Del Rio, Texas. They were exposed to verbal threats, intimidation, medical neglect, extreme hunger and thirst, lack of beds or any sleeping materials, and desert heat.
When he was assaulted by border patrol, Mr. Joseph had left the encampment to get food and water back for his family who were starving.
Most of these 15,000 migrants either fled back to Mexico out of fear, or were then taken into custody, chained at their wrists, waist and feet, including pregnant and breast-feeding women, and expelled back to Haiti under the Title 42 policy without the opportunity to seek asylum protection.
HBA was the only Black- and Haitian-led organization on the ground throughout the Del Rio emergency, where we witnessed unspeakable atrocities. In response we:
HBA v. Biden is a Class Action Lawsuit to demand accountability for thousands of families who were denied their basic rights and treated horrifically under the Del Rio bridge in Texas under the unlawful and racist Title 42 policy. Alongside Justice Action Center and Innovation Law Lab, we are suing the Biden administration.
The plaintiffs are eleven Haitian asylum seekers who were victims of U.S. officials’ abusive treatment in the CBP Encampment and expelled without an opportunity to access the U.S. asylum system. We demand an end to Biden Administration’s harmful, discriminatory, and unlawful policies.
The link to the lawsuit filing is here and the transcript from our press conference about the lawsuit can be found here.
“What we saw in Del Rio is not lost on our community. The United States has a long history of anti-Black racism. The immigration system is rooted anti-Black racism. The immigration prison system is rooted and built on the back of Haitian migrants, Haitian asylum seekers and refugees, so today, we stand with those asylum seekers and those people who were under the bridge, those who have been erased, disappeared, deported, expelled without any access to dignity, compassion or care.”