Motion emphasizes that asylum seekers have been seriously injured, raped, and even killed after CBP officials turned them back at U.S. border 

September 8, 2020, San Diego – Asylum seekers who have been turned back by U.S. Customs and Border Protection (CBP) from ports of entry along the U.S.-Mexico border asked a federal court to permanently stop the Trump administration’s Turnback Policy and declare it unlawful. Under the policy, CBP agents have rejected asylum seekers using unlawful tactics, including metering—forcing asylum seekers to get on months-long waiting lists in dangerous Mexican border towns, before they are permitted to seek asylum under U.S. law. 

The motion for summary judgment filed last Friday explains how U.S. law, the Constitution, and international legal principles require that asylum seekers be given access to the U.S. asylum process and prohibit them from being turned back at the border. The motion also emphasizes that asylum seekers have been seriously injured, raped, and even killed after CBP officials turned them back at ports of entry. Advocates say the policy has created a humanitarian crisis for those marooned on the Mexican side of the border and that migrants there are in serious danger of disappearances, kidnappings, rape, and sexual and labor exploitation.

“Throughout this litigation, CBP has never been able to provide a believable neutral justification for its Turnback Policy, and ample evidence shows that CBP unlawfully enacted the policy to limit access to the U.S. asylum system,” said Erika Pinheiro, Litigation and Policy Director of Al Otro Lado. “Although relief will come too late for those who have perished after being denied protection at U.S. ports of entry, we are hopeful that the Court will consider the overwhelming evidence that CBP broke the law and order relief for asylum seekers who have suffered as a result.”

The motion comes in a class action lawsuit challenging the legality of the Turnback Policy. Attorneys say CBP denied people access to the asylum process by falsely claiming that ports of entry were overwhelmed when they were actually well below capacity. Testimony in the case, including CBP whistleblower testimony, shows that government officials knew the policy was unlawful, but implemented and maintained it nonetheless. The policy is just one aspect of the Trump administration’s attempts to undo this country’s decades-old commitment to the fundamental humanitarian principle of asylum and its attacks on Central American, Haitian, and African migrants seeking refuge in this country.  

The filing argues that the government’s motivation for implementing the policy includes limiting access to the asylum process, deterring asylum seekers from seeking protection in the U.S., and deterring lawful immigration—all of which are unlawful. Border agents used a variety of tactics to turn back asylum seekers, lying to some, coercing others to withdraw their applications, and using physical force to turn back others; documents in the case indicate that a CBP officer once dragged an asylum seeker by her legs back into Mexican territory. CBP even admits that it has turned back asylum seekers who were standing on U.S. soil. 

“This policy was the first of many attempts by the Trump administration to block asylum seekers from accessing the U.S. asylum process. It was justified by lies and has caused unfathomable human suffering and loss of life in service of a white nationalist immigration agenda spearheaded by Stephen Miller,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s (SPLC’s) Immigrant Justice Project. “There must be permanent relief for the tens of thousands of asylum seekers who continue to suffer as a result of the policy and the many more who could.”

The filing highlights the story of class members Oscar Alberto Martinez Ramirez, his wife, Tania Vanessa Ávalos, and their 23-month-old daughter, Valeria. In June 2019, the family was turned back from the Brownsville port of entry, though Brownsville was operating at only 33 percent of its capacity. After the family attempted to cross the Rio Grande River, Oscar and Valeria drowned. A photograph of their bodies face-down along the riverbank, with Valeria’s hand wrapped around her father’s shoulders, was widely circulated in the press. 

“We first brought this case in July 2017— although an entire litany of horrid immigration policies have come and gone, this one is still here, still needlessly denying thousands of individuals the basic humanitarian protections they deserve,” remarked Angelo Guisado, Staff Attorney at the Center for Constitutional Rights. “I hope those families we met in 2017 know that we’re still fighting for them. We will not rest until this policy is eliminated.”

In August, the court certified the case as a class action, thereby covering all asylum seekers who were or will be prevented from accessing the asylum process at ports of entry along the U.S.-Mexico border as a result of the Turnback Policy. The case argues that the policy violates the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the Alien Tort Statute. 

“Summary judgment is a monumental step in our challenge to the Trump administration’s policy of turning back asylum seekers at our southern border,” said Karolina Walters, staff attorney at the American Immigration Council. “The motion explains how the government sought to do through policy what the law does not allow: to deny those in need of protection access to the U.S. asylum process.”

“The summary judgment motion lays out in detail how the Government knew that it was breaking the law and did it anyway, said Stephen Medlock, partner with Mayer Brown LLP. “Thousands of asylum seekers that were doing nothing more than following the law were harmed by the Government’s illegal turnback policy.  Plaintiffs look forward to getting our day in court.”

The case was originally brought by Al Otro Lado, a bi-national, social justice legal services organization serving deportees, migrants, and refugees in Tijuana, Mexico, and a group of 13 asylum seekers who were turned away from ports of entry. They are represented by the Center for Constitutional Rights, Southern Poverty Law Center, American Immigration Council, and the law firm of Mayer Brown LLP.

The filing can be viewed here.

For more information, visit Southern Poverty Law Center, Center for Constitutional Rights, and American Immigration Council.