Judge Allows Lawsuit Challenging Border Patrol Practice of Turning Away Asylum Seekers to Proceed

On Friday, August 24, a federal judge allowed the lawsuit Al Otro Lado v. Kelly — which challenges Customs and Border Protection (CBP)’s practice of routinely failing to permit asylum seekers at the border to actually request asylum through a variety of allegedly unlawful actions — to proceed.   The plaintiff in the lawsuit is the nonprofit Al Otro Lado, co-founded by attorney Nora Philips (who was featured on the blog for her work with the organization in this 2015 post).

Al Otro Lado v. Kelly highlights one of the biggest shortcomings of the expedited removal process, which is that although statute and regulation require that individuals apprehended at or near the border be asked if they are afraid to return to their countries and referred for a credible fear interview if they answer affirmatively, reports have suggested that a fair inquiry into and opportunity to articulate that fear often does not occur. It will be interesting to see how this lawsuit plays out, particularly in light of the Trump Administration’s immigration and border enforcement priorities. 

The Center for Constitutional Rights’ Press Release is below: 

“August 24, 2018, San Diego – A federal judge ruled this week that a lawsuit challenging U.S. Customs and Border Protection’s (CBP) practice of turning away asylum seekers at the U.S.-Mexico border can proceed. The lawsuit was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc., as well as individual asylum seekers who are collectively represented by the American Immigration Council, the Center for Constitutional Rights, the Southern Poverty Law Center and an international law firm. The complaint challenges CBP’s systematic denial of the right to access the asylum process, forcing individuals fleeing persecution to return to countries where they face grave danger and the risk of death. CBP had asked the court to dismiss the case altogether, which the judge denied in this ruling.

“Thousands of refugees fleeing for their lives have been unlawfully denied the right to seek protection in the United States. We are heartened that the Court recognized the U.S. government’s legal obligations to accept asylum seekers at our southern border,” said Erika Pinheiro, Litigation and Policy Director at Al Otro Lado.

The judge affirmed the plaintiffs’ claim that high-level CBP officials have the obligation to direct their agents at ports of entry across the southern border to process individuals who present themselves for asylum. The judge further held that those asylum seekers can proceed with legal action against high-level officials for derogation of their responsibilities under domestic and international law. 

“The ruling puts the Trump Administration on notice that the United States’ brazen dereliction of its domestic and international humanitarian obligations to hear asylum claims will not be tolerated,” said Angelo Guisado, staff attorney at the Center for Constitutional Rights. “Now, our plaintiffs, who bravely took up this legal challenge on behalf of thousands whom CBP also unlawfully turned away at the border, will have the opportunity to be heard in court.”

The lawsuit documents the experiences of hundreds of asylum seekers turned away at ports of entry all along the U.S.-Mexico border. To carry out its turn-away practice, CBP employs a variety of tactics—including misinformation, threats and intimidation, threats of forced family separation, verbal and physical abuse, and coercion. Many were unlawfully turned away multiple times, despite having expressed fear of returning to their home countries in the face of humanitarian crises in Mexico, Haiti, and certain Central American countries.

The judge affirmed that the asylum seekers could proceed with seeking relief in their individual cases, and also suggested that they could represent a class of other asylum seekers, potentially thousands, “who have allegedly experienced the same failures to act” by CBP.

The judge also affirmed that Al Otro Lado as an organization has standing to proceed with their claims against CBP, observing that the organization demonstrated sufficiently that it had shifted significant resources away from its non-refugee programs to provide emergency support for the burgeoning migration crisis in Tijuana, “including individual screenings and in-depth trainings to educate asylum seekers about CBP’s alleged conduct of denying the most basic form of access to the asylum process.”

According to Melissa Crow, senior supervising attorney for the Southern Poverty Law Center and co-counsel for plaintiffs, “The court’s decision represents an important first step toward holding U.S. Customs and Border Protection accountable for flagrant violations of U.S. law that have deprived countless asylum seekers of the right to seek protection in our country. The government’s outrageous practice of turning away vulnerable individuals at the border must end.””

-JKoh