This case challenges the latest iteration of the government's policy and practice of turning back vulnerable asylum seekers at the Southern border.  It follows after the Center for Constitutional Rights and partners brought Al Otro Lado v. Mayorkas (AOL I), which successfully challenged the Trump administration's so-called "metering" policy, by which vulnerable asylum seekers were turned away from seeking asylum at a port of entry and forced to wait months on a waitlist. The case is brought on behalf of immigrant rights groups Al Otro Lado and Haitian Bridge Alliance and ten individual asylum seekers.

Under the Biden administration's new turnback policy, asylum seekers are consistently denied access to the asylum process unless they can download and manage to make an appointment on a notoriously defective smartphone app, called CBP One. Once they are denied the opportunity to access the U.S. asylum process, they must languish in encampments and shelters in Mexican border cities that are rife with violence, crime, and cartels.

On May 12, 2023, the Biden administration promulgated a rule that established a sweeping ban on asylum at the U.S.-Mexico border. The rule bars asylum for anyone who passes through a third country en route to the United States without applying for protection there first, cannot secure advance approval to enter the country through the U.S. government’s limited parole programs, or is unable to obtain one of the limited number of appointments available through the problematic CBP One app. As a practical matter, a CBP One appointment is the only way to gain access to the asylum process. And while the rule contemplates exceptions for certain individuals who come to a port of entry without an appointment, under the government’s CBP One turnback policy, individuals who cannot secure an appointment have been unlawfully turned away and denied the opportunity to access the U.S. asylum process altogether. Though the rule was recently struck down as unlawful, it remains in effect as that case makes its way through the courts.

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.

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. Even in the best of circumstances, CBP One is notoriously glitchy, and its discriminatory facial recognition technology has prevented many darker-skinned and Black migrants from obtaining an appointment. Some asylum seekers have spent months desperately trying to secure an elusive CBP One appointment, which can only be scheduled while the user is physically present in parts of Mexico notorious for high levels of violence against migrants.

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, 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.