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