Ninth Circuit Upholds Rights of Asylum Seekers, Rules “Metering” Unlawful

Today, the Ninth Circuit Court of Appeals largely affirmed a lower court decision that held unlawful the government’s systematic turnbacks – or “metering” – of people seeking asylum at ports of entry along the U.S.-Mexico border. Since at least 2016, the government has prevented individuals at the border from accessing the U.S. asylum process through metering, as well as intimidation, coercion, physical abuse, and other tactics. Vulnerable families, children, and adults have been pushed back and left stranded in precarious conditions in Mexico, where migrants routinely fall prey to violence and exploitation.

“It took seven years and untold sums of taxpayer dollars for the U.S. government to learn a legal lesson that should have been apparent from the beginning – that respect for the rule of law and international human rights norms still matters, and that you cannot have a legal process to decide asylum claims while also implementing policies that deny access to that process,” said Nicole Elizabeth Ramos, Al Otro Lado’s Border Rights Project Director. “Too many good people have died as a result of the metering policy, too many were raped, sold, tortured, or disappeared, never to be heard from again, because CBP turned them away. While the government can never wash its hands of their blood, it can choose to accept the loss today and to stop wasting taxpayers’ money to justify its repeated violations of the rights of asylum seekers trapped at the U.S.-Mexico border.”

The lawsuit challenging turnbacks was first brought in 2017 on behalf of Al Otro Lado, a nonprofit legal services organization assisting migrants on both sides of the U.S.-Mexico border, and numerous individual asylum seekers harmed by the policy. The plaintiffs are represented by the Center for Gender & Refugee Studies, the American Immigration Council, the Center for Constitutional Rights, and Democracy Forward, along with the law firms Mayer Brown LLP and Vinson & Elkins LLP.

In 2021, a district court judge declared the metering policy unlawful, finding that U.S. law requires border officers to inspect and process asylum seekers arriving at U.S. ports of entry and allow them to seek protection in the United States. The government appealed that decision, and today the Ninth Circuit sided with Al Otro Lado and the other plaintiffs, affirming the lower court’s ruling.

While we welcome this ruling, we note that under the Biden administration, the government’s turnback practices have evolved and expanded. In 2023, the government unveiled new regulations making most people seeking safety at the southern border categorically ineligible for asylum. Only those able to obtain one of a limited number of appointments via the government’s flawed CBP One smartphone app have been permitted to pursue their asylum claims – essentially a new form of metering. Counsel in this case have brought an additional lawsuit challenging turnbacks of asylum seekers without CBP One appointments. That litigation remains ongoing. While the 2023 rule provided certain narrow exceptions for people unable to obtain a CBP One appointment, the administration published new regulations in June 2024 that scaled back these exceptions and imposed additional barriers to people seeking protection. 

“Today’s ruling affirms what we know to be true,” said Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies (CGRS). “Our government has a legal duty to provide a fair and meaningful legal process to all people seeking safety at our border, no matter what. Border agents cannot arbitrarily turn people back to Mexico, a practice that violates our laws, exacerbates chaos at the border, and places refugees directly in harm’s way. The administration should take today’s ruling to heart. It is past time for our government to end these draconian practices and establish a fair, dignified, and humane asylum process at the southern border.”

"This ruling upholds the human right to seek asylum. As Al Otro Lado and many other groups on the ground have been arguing for years, it is unlawful for the U.S. government to block people from approaching ports of entry, push them back to Mexico, and deny them a fair chance to make their case. Instead of turning back asylum seekers, an approach that plays right into the hands of dangerous criminal organizations, the government should be investing in our ports of entry and improving humanitarian processing at our border," said Suchita Mathur, senior litigation attorney at the American Immigration Council.

"I have spent seven years traveling to the U.S.-Mexico border to interview people whose journeys were upended and lives essentially ruined by the United States' cruel, needless, and flagrantly unlawful turnback policy," said Center for Constitutional Rights Senior Staff Attorney Angelo Guisado. "I am glad to see our judiciary recognize asylum seekers' suffering at the hands of an apathetic U.S. government and that the court saw fit to declare that the U.S. has an unmistakable duty to process these individuals as they come.”