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U.S. District Court for the Southern District of California, No. 3:23-cv-01367-AGS-BLM
U.S. Court of Appeals for the Ninth Circuit, No. 23-3396
What is the government doing and why are we challenging it?
This lawsuit challenges the Biden administration’s policy and widespread practice of requiring asylum seekers at the southwest border to make an advance appointment via the government’s CBP One smartphone app in order to seek asylum at a port of entry (POE).
On May 12, 2023, the Biden administration promulgated a rule that established a sweeping ban on asylum at the U.S.-Mexico border. As a practical matter, most asylum seekers at the southern border can avoid the ban only by scheduling a CBP One appointment at a POE. Though the rule was recently struck down as unlawful, it remains in effect as that case makes its way through the courts. The government has given no indication that it will change its policy of turning back asylum seekers who do not have a CBP One appointment, regardless of whether the rule remains in effect.
The lawsuit charges that, since its inception, the CBP One app has been inaccessible to the most vulnerable and marginalized people seeking safety at the U.S.-Mexico border. Only those who are literate in one of the few languages the app supports and have a relatively new smartphone, a reliable internet connection, and electricity are able to successfully navigate the app.
Under the government’s new turnback policy, individuals who cannot secure a CBP One appointment are unlawfully turned away and denied the opportunity to access the U.S. asylum process altogether, leaving them to languish in encampments and shelters in Mexican border cities where their racial and migrant identities leave them vulnerable to predation and violence.
This lawsuit argues that the government’s policy of turning back asylum seekers who do not have a CBP One appointment violates U.S. law, the government’s own guidance, 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.
What is at stake?
This lawsuit seeks to protect asylum seekers who are in Mexico and wish to present at a POE to seek asylum, but have not obtained a CBP One appointment. The plaintiffs include 10 individual asylum seekers who have been turned away and harmed by the new turnback policy, and the nonprofit legal organizations Al Otro Lado and Haitian Bridge Alliance, which serve asylum seekers and other migrants on both sides of the U.S.-Mexico border.
The lawsuit documents numerous cases in which asylum seekers unable to obtain CBP One appointments requested asylum at a port of entry, only to be turned away by border officers. The plaintiffs include parents of small children who are now languishing in shelters or informal encampments, afraid to even venture outside given the dangers that await migrants in Mexican border towns. Several of the plaintiffs are Mexican nationals who have been left stranded in the very country they are desperately trying to flee. As they wait for the CBP One app to work and an appointment to materialize, they fear for their lives.
What’s the status of this case?
CGRS and our co-counsel filed the legal challenge in the U.S. District Court for the Southern District of California on July 27, 2023. We are asking the court to declare the government’s new turnback policy illegal and order the government to stop turning away asylum seekers at or near POEs.
On October 13, 2023, Judge Schopler denied plaintiffs' motion for a preliminary injunction. Plaintiffs have appealed the district court's decision to the Court of Appeals for the Ninth Circuit. Oral arguments before the Ninth Circuit were held on May 13, 2024.
The government defendants filed a motion to dismiss on November 13, 2023. Plaintiffs filed their opposition to the motion to dismiss on January 12, 2024. The government filed a reply on February 12, 2024. On September 30, 2024, Judge Schopler issued an order largely denying defendants' motion to dismiss.
On June 6, 2024, the district court requested supplemental briefing regarding the impact of the Presidential Proclamation, Securing the Border, and related guidance. On June 20, 2024, Plaintiffs filed a brief arguing that the Presidential Proclamation and the DHS and DOJ’s June 7, 2024, interim final rule (new measures that restrict asylum eligibility when the Proclamation is in effect) do not impede Plaintiffs from moving forward with their claims. Plaintiffs also filed a notice with the Ninth Circuit regarding these new measures. CGRS and partner organizations are challenging the new restrictions on asylum eligibility in separate litigation.
Who’s involved?
CGRS is co-counsel, along with the American Immigration Council, the Center for Constitutional Rights, Mayer Brown LLP, and Vinson & Elkins LLP.
How can you help?
- Take the #WelcomeWithDignity pledge and join our movement to defend the right to seek asylum. You can support CGRS’s vital work on cases like this one by making a donation.
Need more information?
- Contact Brianna Krong, Communications and Advocacy Manager, at krongbrianna@uclawsf.edu.
Resources for Advocates
- Attorneys representing clients who may be subject to the asylum ban can request assistance from CGRS through our Technical Assistance Library.
