Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers

Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers

Al Otro Lado, Inc. v. Nielsen, No. 3:17-cv-02366-BAS-KSC (S.D. Cal.)


On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham and Watkins, LLP, filed a class action lawsuit challenging Customs and Border Protection’s (CBP) unlawful practice of turning back asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

The plaintiffs in the case are Al Otro Lado, a non-profit legal services organization that serves indigent deportees, migrants and refugees in Los Angeles and Tijuana, along with individual, courageous asylum seekers who experienced CBP’s unlawful conduct firsthand. Their experiences demonstrate that CBP has used a variety of tactics – including misrepresentation, threats and intimidation, verbal abuse and physical force, and coercion–to deny bona fide asylum seekers the opportunity to pursue their claims. The complaint alleges that CBP’s refusal to allow asylum seekers access to the asylum process violates the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

On October 12, 2018, Plaintiffs filed an amended complaint adding allegations of an official “Turnback Policy” that formalizes the widespread, unlawful practice described in the original complaint. Specifically, Plaintiffs allege that high-level agency officials adopted a policy requiring CBP officers to drastically restrict the number of asylum seekers processed at POEs along the U.S.-Mexico border by turning them back to Mexico when they present themselves for inspection, based on false claims of a lack of “capacity.”  The amended complaint also adds eight individual plaintiffs who were subject to the Turnback Policy to the lawsuit.  In response to Plaintiffs’ amended complaint, on November 29, 2018, Defendants filed a motion to dismiss, which remains pending. 

On February 21, 2019, the following groups filed amicus briefs in support of Plaintiffs’ opposition to Defendants’ motion to dismiss: 

  • More than 70 members of Congress arguing that the congressional intent behind the INA was to ensure prompt processing of asylum seekers at the border;
  • 19 States and Washington, DC, which together welcome more than 73 percent of asylees entering the United States, explaining how their resources will be diverted to assist impacted asylees who become their residents;
  • 19 organizations which represent asylum seekers arguing that the administration’s justification for its policy is factually false;
  • Immigration and refugee law scholars arguing that U.S. asylum law applies to asylum seekers who are stopped mere steps from the U.S. border;
  • Amnesty International arguing that U.S. obligations under international law require the prompt processing of asylum seekers, and that humanitarian crises are developing on the Mexican side of the border as a result of the policy; and
  • 5 organizations which advocate for immigrant children and youth detailing the particular dangers faced by unaccompanied minors denied access to the asylum process.

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November 15, 2017

It is an egregious, well-documented reality that U.S. Customs and Border Protection (CBP) frequently turns away people seeking asylum along the U.S. southern border. But new evidence presented to...

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