Today several groups filed suit against the U.S. government’s Department of Homeland Security and the Customs and Border Protection (CBP) agency for turning away asylum seekers, contrary to domestic and international law.
Along the U.S.-Mexico border, asylum seekers arrived from all over the world to present themselves to CBP to ask for protection. The right to seek asylum is enshrined in Article 33 of the United Nations Convention on the Status of Refugees, which came into being in 1951 and was expanded by the 1967 Protocol. The United States signed the Protocol in 1968, enacting domestic law to implement the international agreement in 1980. The U.S. is thus bound by the terms of the Protocol and the Convention itself, including, critically, the principle of non-refoulement — non-return of individuals to a place where they would face persecution on account of one of the five protected grounds.
In recent years, however, CBP has been routinely turning away vulnerable asylum seekers, forcing them to return to Mexico without allowing them to pursue their right to claim asylum. This illegal practice has worsened as CBP officers became emboldened following the election and inauguration of Donald Trump as U.S. President. Indeed, in January 2017, several groups filed a complaint with the Department of Homeland Security’s Offices of Civil Rights and Civil Liberties and Inspector General, alleging systemic abuses at the border. In March, the U.S. government failed to even show up to defend their practices before the Inter-American Commission for Human Rights, a session which included testimony from multiple groups on the illegal turning away of asylum seekers at the border.
To challenge the unlawful practice of turning away asylum seekers, today the American Immigration Council, the Center for Constitutional Rights, and Latham & Watkins LLP filed suit in federal court in California’s Central District. The plaintiffs are Al Otro Lado, a “national, direct legal services organization serving indigent deportees, migrants, and refugees in Tijuana, Mexico” and six of their clients. The lawsuit alleges that DHS and CBP have violated asylum seeker’s rights to seek protection, along with their due process rights under the Fifth Amendment to the U.S. Constitution, and violations of international law.
The plaintiffs’ stories are all too familiar to asylum lawyers based in the U.S. Personally, I Co-Direct the Immigration and Human Rights Clinic at the University of the District of Columbia’s David A. Clarke School of Law. Our current clients include several mothers fleeing violence in Central America who eventually made it into the U.S. after being illegally turned away. We work with survivors of extreme domestic violence and persecution at the hands of transnational criminal organizations, known as “maras,” were turned away at the border by officials with statements such as “There’s no asylum for people from Honduras…” or “You can’t get asylum because you’re scared of your husband.” These statements are patently false, of course, and the precedential Board of Immigration Appeals decision, Matter of A-R-C-G-, made clear that individuals fleeing domestic abuse can meet the asylum definition.
As Karolina Walters of the American Immigration Council summarizes from the Complaint today, on their blog, “[o]ther examples of the tactics used by CBP officers against asylum seekers, include:
- Misrepresenting that visas are required to cross at a POE or that asylum seekers must obtain a “ticket” from a Mexican government agency before they will be allowed to enter the United States to seek asylum;
- Yelling profanities at an asylum-seeking mother and her 5-year-old son, throwing her to the ground, and forcefully pressing her cheek into the pavement; and
- Coercing asylum seekers into recanting their fear on video and into withdrawing their applications for admission to the United States.”
The Washington Post quotes legal fellow, Katie Shepherd, also with the American Immigration Council “‘[CBP officers are] getting very creative; we keep hearing new ways they’re turning people away. . . ‘If a single asylum seeker is denied in a day, that’s one too many.’”
It is, of course, a sad state of affairs that a lawsuit to protect the rights of asylum seekers is necessary. We can only hope that the Court will hold the government to account and the government will honor their legal obligations to protect refugees.