Al Otro Lado, et al., v. Alejandro Mayorkas, et al., No. 3:23-cv-01367 (S.D. Cal., filed Jul. 27, 2023) and No. 23-3396 (9th Cir., filed Nov. 9, 2023)

This lawsuit challenges the federal government’s border-wide policy and practice of turning back asylum seekers without an appointment scheduled through the CBP One mobile application at ports of entry (POEs) along the southern border, denying them access to the U.S. asylum process. The suit seeks to end U.S. Customs and Border Protection’s (CBP’s) newest iteration of unlawful metering, and to ensure that the government is complying with U.S. laws meant to protect asylum seekers’ rights and safety.

Restricting asylum access to only those individuals who can use a smartphone app imposes unfair and at times insurmountable barriers for asylum seekers. The CBP One Turnback Policy, under which CBP officers turn back most asylum seekers who cannot secure an appointment made via the CBP One app, creates language, literacy, and disability access issues. There is evidence that CBP in some cities is coordinating with Mexican officials to block asylum seekers without CBP One appointments from physically approaching ports of entry. The policy therefore causes unreasonable delays and endangers asylum seekers’ lives. Even those able to use the app are denied appointments due to limited slots, forcing indefinite waits in precarious conditions in Mexico.

The plaintiffs in the suit are immigrant rights organizations Al Otro Lado and Haitian Bridge Alliance, and 10 individuals turned away at the southern border by CBP and denied their fundamental right to seek asylum in the United States.

The CBP One Turnback Policy has harmed plaintiffs, leaving them vulnerable to assault, rape, kidnapping, and even murder in dangerous Mexican border towns. It also disrupts organizations’ missions, diverting resources to counteract the policy’s harmful effects.

On August 9, 2023, plaintiffs filed a motion for preliminary injunction to block the implementation of the policy until the case is decided, along with a motion to provisionally certify a class. If granted, the government would be required to follow its own binding guidance, and process all people seeking asylum at ports of entry, regardless of whether they are lucky enough to obtain a CBP One appointment.

On October 23, 2023, the court denied the motion for preliminary injunction in an oral opinion, holding that the jurisdictional bar at 8 U.S.C. § 1252(f)(1) barred injunctive relief. The court also denied the motion for provisional class certification as moot based on the denial of the preliminary injunction. On November 11, 2023, plaintiffs filed a notice of interlocutory appeal on both denied motions to the Ninth Circuit.

Documents

• Complaint
• Plaintiffs’ Motion for Provisional Class Certification
• Memo In Support of Plaintiffs’ Motion for Preliminary Injunction

Counsel: American Immigration Council, the Center for Gender & Refugee Studies, Center for Constitutional Rights, Mayer Brown LLP, Vinson & Elkins LLP

Contact:  Gianna Borroto | American Immigration Council | gborroto@immcouncil.org

Press:

• Ava Sasani, Biden administration sued over asylum appointment app that ‘does not work’, The Guardian, Aug. 7, 2023.
• Joel R. McConvey, CBP One app faces lawsuit from rights organizations, Biometric Update, Jul. 28, 2023.
• US Government Faces Lawsuit Over Immigration App, Barron’s, Jul. 28, 2023.
• Sandra Sanchez, Migrant advocacy groups sue DHS over pathways to asylum policy, Border Report, Aug. 11, 2023.