Court Allows Legal Challenge to CBP One Turnback Policy to Proceed

Last night, a federal judge ruled in a case challenging the Biden administration’s policy of turning back asylum seekers who approach ports of entry along the southern border without first obtaining an advance appointment. The court considered the administration’s motion to dismiss the lawsuit and ultimately allowed the case to proceed.

The lawsuit was filed last summer on behalf of Al Otro Lado, Haitian Bridge Alliance, and nine individual plaintiffs seeking to represent a broad class of asylum seekers who sought to request protection at U.S. ports of entry, only to be turned away because they had been unable to obtain an appointment via the government’s notoriously inaccessible CBP One smartphone app. 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 the law firms Mayer Brown LLP and Vinson & Elkins LLP.

In November 2023, the U.S. government filed a motion to dismiss the case, arguing that Al Otro Lado and Haitian Bridge Alliance lacked standing to challenge the CBP One turnback policy. This week, the court largely sided with the plaintiffs, noting the numerous ways the policy has forced the organizations to overhaul their programs to assist individuals struggling to obtain appointments and to support asylum seekers turned back and stranded in Mexico, many in perilous circumstances.

The court also ruled that the government cannot relitigate issues that were decided in Al Otro Lado’s favor in AOL v. Mayorkas, which challenged a prior Customs and Border Protection (CBP) policy resulting in turnbacks of asylum seekers at ports of entry. These include the government’s statutory obligation to inspect and process migrants “in the process of arriving” in the United States.

In 2023, the Biden administration introduced a sweeping ban that created a “rebuttable presumption” of ineligibility for most people seeking asylum at the southern border. This policy has resulted in the unlawful return of refugees to Mexico, where many have faced brutal, targeted violence. Securing a CBP One appointment was one of the primary avenues by which an individual could avoid having the ban applied to them. However, the government’s rule required border agents to process asylum seekers who approached ports of entry, regardless of whether they had an advance appointment. On Monday, the court found that the plaintiffs had plausibly alleged the existence of the CBP One turnback policy, which is at odds with that requirement. 

“While the government denies that a CBP One turnback policy exists, the amount of money that it spends on litigation to prevent refugees from being processed upon arrival at U.S. ports of entry belies their true intention, which is not safer, more efficient asylum processing, but rather to deter, delay, and deny access to the only legal process that refugees have to save their lives,” said Nicole Elizabeth Ramos, Border Rights Project Director for Al Otro Lado. “The decision of the federal court on the government's motion to dismiss explicitly recognizes that we have alleged sufficient facts and harm for this case to move forward, and we look forward to presenting our evidence at trial, evidence supplied by the words and actions of CBP officers themselves.”

“The court has affirmed that, contrary to what the government often suggests, we are not crazy in challenging the harms created by the CBP One turnback policy,” said Erik Crew, Staff Attorney at Haitian Bridge Alliance. “We have a plausible claim, and we look forward to presenting more evidence on the government’s turnback scheme and its effects on the people we serve.“

“For over a year now, the government has used the CBP One turnback policy to prevent migrants from accessing the asylum process,” said Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies (CGRS). “This turnback policy is part of a larger set of border measures designed to close the door to people seeking safety. Yesterday, the administration finalized another draconian rule, effectively shutting down the asylum process at the southern border to anyone unable to obtain a CBP One appointment. These policies violate our laws, endanger refugees, and upend the vital, life-saving work of organizations like Al Otro Lado and Haitian Bridge Alliance. We will continue to defend our plaintiffs and hold the government accountable to those seeking refuge at our nation’s doorstep.”

“We are pleased with the ruling,” said Center for Constitutional Rights Senior Staff Attorney Angelo Guisado. “CBP One has failed the most vulnerable asylum seekers at our border, leaving countless migrants in danger and without recourse. Its continued use serves as nothing more than the United States' poor attempt to circumvent its inviolable humanitarian responsibilities.”

“Preventing vulnerable asylum seekers from asking for protection at ports of entry is the opposite of a fair, orderly, and safe policy,” said Suchi Mathur, Senior Litigation Attorney at the American Immigration Council. “We look forward to continuing to fight alongside Al Otro Lado, Haitian Bridge Alliance, and our individual plaintiffs so that all those in need of protection can access the asylum process in a dignified way, as our laws have required for decades.”