Ninth Circuit Hears Argument in CBP One Turnbacks Case, One Year After Government Launches Ban

Yesterday the Ninth Circuit Court of Appeals heard arguments in a legal challenge to the Biden administration’s policy of turning back asylum seekers who seek protection without first obtaining an appointment via the government’s flawed CBP One smartphone app. Last fall a district court declined to issue a preliminary injunction, erroneously concluding that it lacked the authority to do so. In court on Monday, attorneys for the plaintiffs argued that the Ninth Circuit should reverse the lower court’s ruling and direct it to issue a preliminary injunction halting the policy.

This 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 due to lack of a CBP One appointment. 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.

One year ago, the Biden administration launched a sweeping ban on asylum, creating a “rebuttable presumption” of asylum ineligibility for the majority of non-Mexican refugees seeking safety at the border. Scheduling a CBP One appointment has been the primary mechanism by which asylum seekers can avoid having the ban applied to them in asylum proceedings. Under the government’s latest turnback policy, asylum seekers unable to obtain an appointment have been unlawfully denied the opportunity to access any legal process whatsoever. This violates the administration’s own policy guidance, which requires border agents to allow all asylum seekers who approach ports of entry to wait in line, whether they have a CBP One appointment or not.

Human rights investigators have documented thousands of violent attacks against people blocked from seeking protection under the asylum ban and turnback policies. Despite modest improvements, in practice the CBP One app remains inaccessible to the most marginalized people seeking asylum, including many Haitian and African migrants, people who are not literate in one of the few languages supported by the app, migrants with certain disabilities, and anyone without a relatively new smartphone and reliable access to electricity and internet. As a result, vulnerable asylum seekers have spent months waiting for a CBP One appointment in northern Mexico, where they have suffered increasing, targeted violence. 

“These illegal turnbacks are part of a larger web of unlawful policies designed to shut down asylum at the border,” said Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies (CGRS). “In practice, these policies of cruelty and exclusion have put vulnerable refugees directly in harm’s way, while increasing chaos and exacerbating operational challenges at the border. As we await a decision from the Ninth Circuit, there is nothing preventing the Biden administration from doing the right thing to protect lives and uphold our laws. The government must end the illegal turnbacks, follow its own laws and policies, and adopt real solutions to address the humanitarian challenges at our southern border. Lives hang in the balance.”

“Al Otro Lado assists thousands of asylum seekers in Mexico who seek to follow established legal procedures to request protection in the United States. The safest and most orderly option would be to present themselves at the ports of entry, but most are unable to do so due to the requirement that they make an appointment using the CBP One app. The lucky few able to navigate the app are now waiting upwards of six months in some of the most dangerous cities in the world, where they are targeted for violence by state actors and criminal groups. Those facing imminent harm and those unable to access the app are forced to place themselves at the mercy of ruthless smugglers to cross between ports of entry, leading to further suffering and even death. This cycle of peril could be avoided if the U.S. government followed the law and allowed all asylum seekers who approach the ports of entry to wait in line, whether they have a CBP One appointment or not, ” said Erika Pinheiro, Executive Director of Al Otro Lado. 

“Requiring everyone seeking asylum to use a complicated and glitchy app has caused immense suffering at our southern border. This approach only worsens inequities and inefficiencies in our immigration system, to the detriment of the most vulnerable. The U.S. government should not be allowed to hide behind technicalities as families are kidnapped, extorted, and deprived of their most basic human rights while forced to wait in Mexico. All plaintiffs are asking for in this case is the implementation of the dignified, safe, and fair asylum process that most Americans want. DHS has the power and resources to immediately follow its own policies and allow all people seeking protection to wait in line at ports of entry,” said Suchi Mathur, Senior Litigation Attorney at the American Immigration Council.

“Haitian Bridge Alliance staff 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 illegal turnbacks,” 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 become targets of discrimination and violence. The consequences are dire. 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.