(CN) – The federal policy carried out at the U.S-Mexico border that turns away asylum seekers to discourage immigrants from coming to the country was recognized by a California federal judge on Monday as likely being a violation of international law.
U.S. District Judge Cynthia Bashant ruled against the federal government’s motion to dismiss part of a lawsuit over the practice of turning away asylum seekers at the border.
The class action suit, filed by nonprofit immigration law firm Al Otro Lado and individual immigrants, hinges on whether Customs and Border Protection officials who turned away asylum seekers were acting in compliance with the Immigration and Nationality Act.
Plaintiffs in the federal complaint allege CBP officials at ports of entry along the U.S.-Mexico border deny individuals access to the asylum process through a variety of “illegal tactics” and have been doing so since May 2016, when asylum seekers were turned away from the San Ysidro port of entry in San Diego.
The immigrant plaintiffs claim this policy was formalized in 2018 with a border-wide turn back policy. Asylum seekers are told the port of entries do not have enough room to accommodate them and that they will have to wait on the other side of the border in Mexico.
Multiple plaintiffs joined the complaint since it was first filed in July 2017 – many are from Central America. They argue that the U.S. government’s actions at the border violate international law, especially the principle of non-refoulement, which provides that a country cannot expel or return a refugee to a country where they would be threatened or persecuted on account of their race, religion, nationality or membership in a certain group.
The federal government argues the claims made by the group of immigrant plaintiffs who were added to the complaint should not be handled by the U.S. government, because the immigrants made their claims when they were on the Mexican side of the border.
In an 84-page order, Bashant denied the government’s motion to dismiss three Doe plaintiffs, who say they were coerced by CBP officers into recanting their applications for asylum by stating that they no longer feared persecution.
“Taking these plaintiffs’ factual allegations of coercion as true, these plaintiffs did not voluntarily withdraw their applications for admission,” Bashant said in the ruling. “Thus, the mandatory duties to inspect and refer or detain were plausibly ‘unlawfully withheld’ such that these Plaintiffs may seek Section 706(1) relief.”
Bashant said the plaintiffs’ allegations are “are directly linked” with the so-called “Turnback Policy.”
Bashant added that it is entirely possible that there are legitimate reasons for CBP to have conflicting obligations that Congress has chosen to place on the agency, which makes management of the port complex. However, the agency’s policies only target asylum seekers and not any other individuals who may be crossing into the U.S. at ports of entry.
Asylum seekers are supposed to be screened and referred to an asylum officer.
“Turning back prospective asylum applicants pursuant to an alleged executive policy that seeks to deter asylum seekers through false assertions of lack of capacity is plausibly inconsistent with and violative of the scheme Congress enacted,” Bashant said. “And turning away or citing a ‘lack of capacity’ suggest the existence of an unlawful de facto numerical limit that is not supported by any existing statute.
“The imposition of such a limit, through false assertions of lack of capacity, surely violates the scheme Congress enacted, particularly when contrasted with the separate scheme in Section 1157,” Bashant added.
The judge did grant the government’s motion to dismiss Al Otro Lado, because it is not an individual, but an organization that lacks jurisdiction to make an Alien Tort Statute (ATS) claim.
“Under its plain language, the ATS provides for federal jurisdiction only over civil actions ‘by an alien,’” Bashant said.
The federal government has until August 16 to answer the claims made in the second amended complaint.
Baher Azmy, legal director of Center for Constitutional Rights – co-counsel for the plaintiffs – called the court’s order a vindication of law.
“People will see this as a major judicial rejection on the attack of asylum laws,” Azmy said.
The plaintiffs will now gather evidence to illustrate the federal government’s “Turnback Policy.”