Judge rules border officials unlawfully turned asylum seekers away from ports of entry

SAN DIEGO — A federal judge in San Diego found that U.S. border officials unlawfully sent asylum seekers away from ports of entry and denied their due process rights to be screened for protection claims.

In an order late Thursday afternoon in a lawsuit filed by legal groups representing Al Otro Lado, an organization that supports migrants in Tijuana, and a class of unnamed asylum seekers, Judge Cynthia Bashant said that since 2016, Customs and Border Protection had violated its legal obligations by instructing its officers to tell asylum seekers to turn around and wait in Mexico to be processed at a later time. This often sent asylum seekers back to danger as many migrants are targeted by gangs, cartels and other criminal groups in Mexico's northern border towns.

"The risks of waiting in Mexico, often for an extended period of time, are high," Bashant wrote in her decision. "The evidence submitted shows that turnbacks resulted in asylum seekers' deaths, assaults, and disappearances after they were returned to Mexico."

Under U.S. law, when people come to ports of entry without documents that would allow them to enter the United States, if they say they are afraid to return to their home countries, CBP officers are supposed to refer them to asylum officers with U.S. Citizenship and Immigration Services for interviews. Those interviews are a preliminary screening step to determine whether the asylum seekers have "credible fear" — meaning that the reasons they are afraid for returning home could be grounds for asylum. If they pass that screening, they are then referred to immigration court.

The turnbacks, or "metering," as the policy is often called, started under the Obama administration when the number of Haitians arriving at the San Ysidro Port of Entry increased substantially. Officers began sending Haitians away with instructions to return on a later date.

Then officials began using it for all arriving asylum seekers and along the entire southwest border. The policy was formalized under the Trump administration with "queue management" guidance from the Department of Homeland Security sent out to ports of entry.

CBP began stationing officers at or near the physical border line to prevent asylum seekers from reaching U.S. soil.

This summer, under President Joe Biden, CBP even sent officers to stand near the border line in the vehicle lanes at San Ysidro Port of Entry to prevent asylum seekers from driving onto U.S. soil to request protection.

Government attorneys argued in the case that because the asylum seekers were not yet on U.S. soil, they did not have to be processed according to immigration law.

Bashant found that wasn't true. She said the law applies to asylum seekers who are in the process of arriving at ports of entry, such as walking up the pedestrian walkway to the port of entry.