Debate Over Turning Back Asylum Seekers Heats Up in Federal Court

SAN DIEGO (CN) – A federal judge heard arguments Friday on whether she should dismiss a case challenging Customs and Border Protection’s practice of turning away asylum seekers, with much of the discussion splitting hairs over where Mexico ends and U.S. soil begins at ports of entry.

U.S. District Judge Cynthia Bashant said “this is going to be a little bit string of consciousness” before offering her initial take on a class action filed by nonprofit immigration law firm Al Otro Lado and individual immigrants over what they say is a systemic policy and practice of turning away asylum seekers at ports of entry at the U.S.-Mexico border.

Bashant reminded attorneys at this stage in the proceedings she must accept the facts presented as true. She said the issue she is tasked to decide is whether immigration officials are complying with statues – including the Immigration and Nationality Act – which govern border patrol activity.

She also noted the government has not denied the “de facto” limit it’s accused of placing on the number of asylum seekers allowed into the U.S.

“I think that’s barred under the statute. Anyone who wants to seek asylum can seek asylum, at least that’s how I read it,” Bashant said.

Justice Department attorney Gisela Westwater told Bashant since the case was filed in 2017 the government has formalized its metering guidelines as to how many asylum seekers are allowed into the U.S., in a memo issued to border patrol agents.

Bashant interrupted Westwater multiple times throughout the hearing when the Justice Department attorney characterized the claims against the government stem from a lack of staff and resources to timely process asylum seekers at ports of entry.

“It’s way more than that,” Bashant said. “There’s a lot more than just metering.”

Westwater disputed migrants have a right to seek asylum in the U.S. when they are still on Mexican soil. She claimed doing so would be an “extraterritorial application” of the Immigration and Nationality Act.

But Bashant suggested that position on asylum may be “fundamentally inconsistent” given the government has facilitated the admission of asylum seekers at the border.

“Every week in this court I hear cases of drug smuggling and they haven’t even made it to the line and attorneys argue they have smuggled drugs into the U.S.,” Bashant said.

Bashant looked aghast when Westwater said the government can turn away people at the port of entry, even if they are in the process of arriving at the border.

Westwater said Customs and Border Protection does not deny an individual may ever enter the U.S., but uses the metering process as a crowd-control tool to ensure safe and sanitary conditions for officers, other travelers and migrants.

“Individual day to day operational decisions cannot be reviewed by the court. If there is a problem with how CBP is managing resources its better left to Congress or the executive – it’s not for the court to get into,” Westwater said, using the acronym for Customs and Border Protection.

Melissa Crow of the Southern Poverty Law Center, representing the plaintiffs, said the asylum process outlined by the Immigration and Nationality Act is a “statutory scheme enacted by Congress for people seeking protection from persecution.”

“The government would have us believe they are merely making people wait in line as you do at the Department of Motor Vehicles,” Crow said.

But the government is turning people away outright or telling them to get on a waitlist “that is dysfunctional and corrupt,” Crow added.

Crow said the government’s claims it has reached capacity at ports of entry are pretextual and that there are the same number of people to process as before, when there was no delay in their application for asylum.

Customs and Border Protection only reaches capacity a couple times a year, according to Crow.

Bashant questioned Crow about what kind of order she would issue and whether the plaintiffs had done enough to show the turn-back policy is “a final agency action.”

Crow said the judge should enjoin the government policy of restricting the number of asylum seekers.

On rebuttal, Westwater said the immigrants have failed to show there is a policy “across the board to keep people from seeking asylum,” suggesting the claims could be litigated individually and not as a class action.

“They have not distilled one action at one time that binds these individuals together,” Westwater said.

Following the hearing, Al Otro Lado legal director Nora Phillips said the group brought the case shortly after President Donald Trump was elected amid reports border patrol officials were making “legally incorrect” statements such as there’s no more asylum or telling people to seek asylum at nonexistent refugee camps in Mexico.

“It was just this dramatic change where you see tons of people getting returned who had totally viable asylum claims,” Phillips said.

Bashant took the matter under submission and did not indicate when she would rule.

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