SAN DIEGO (CN) — Pointing to the federal government’s attempt to deport a Cameroonian immigrant who was metered and waitlisted at the U.S.-Mexico border when the Trump administration’s so-called — and now blocked — Third Country Transit rule was implemented, an immigration attorney told a judge Monday the federal government is still blocking asylum with the rule.
“This very case demonstrates how the government continues to apply the asylum ban in this case and other similarly situated cases,” Southern Poverty Law Center attorney Rebecca Cassler told U.S. District Judge Cynthia Bashant in a virtual court hearing Monday.
Cassler argued the federal government is not in compliance with Bashant’s preliminary injunction last year blocking the government from deporting asylum seekers along the U.S.-Mexico border who had been metered and waitlisted at ports of entry prior to the implementation of the Third Country Transit Rule July 16, 2019.
The rule — commonly called the “Asylum Ban” — required asylum seekers to have first sought asylum and show proof they were rejected in a third country before being allowed to seek asylum in the U.S.
But those who had been waitlisted at ports of entry for weeks or months before the rule was enacted were unable to pursue asylum in Mexico or other countries they had already passed through, which typically require asylum seekers pursue relief within 30 days of arrival.
The rule was invalidated by a D.C. court and the Ninth Circuit this past summer. But Cassler claims the federal government is still attempting to deport their client under the rule.
The asylum applicant — a Cameroonian woman who claims she was repeatedly arrested, detained and tortured for her anti-government political activities in her home country — was metered at the San Ysidro Port of Entry June 4, 2019, more than a month before the rule went into effect.
Despite being listed as #3295 on the San Ysidro waitlist, when she was interviewed by officers she was found ineligible to pursue asylum under the Third Country Transit Rule.
An immigration judge affirmed the finding just five days before Bashant’s ruling blocking the federal government from deporting metered asylum seekers who were potential class members in a class action brought by immigration services nonprofit Al Otro Lado.
Cassler told Bashant on Monday the interviews the asylum seeker had undergone were noncompliant with the judge’s prior order guaranteeing access to the asylum process for class members.
The Cameroonian woman had been denied asylum “solely based on the asylum ban,” Cassler said, and had been screened by officers using the higher “reasonable possibility standard.”
The legal standard is a higher burden of proof where an asylum seeker must prove they are more likely than not to face persecution. But during typical credible fear interviews, asylum seekers must show a lower 10% likelihood of persecution, Cassler said.
Because she was evaluated under a higher standard, the woman never received the credible fear interview guaranteed by Bahant’s preliminary injunction, Cassler said.
“She has not been afforded the process which existed prior to July 16 and which your [preliminary injunction] mandates,” Cassler said.
When Bashant reiterated the government’s argument that Cassler’s client had failed to alert them she had put her name on a waitlist at the port of entry, Cassler called the screening process “confusing.”
Portions of the credible fear interview transcript read during the hearing showed how the way a question was worded could have tripped up the asylum applicant when answering them.
When the Cameroonian woman was asked “Did she put her name on a waitlist besides the San Ysidro waitlist?” she answered “No” because her name had only been put on that list, not any others, Cassler said.
“There is evidence of interpretation issues which call into question the validity of the whole screening,” Cassler said.
She added, “That question was potentially misleading and confusing as well,” and noted it “did not get to the heart of the issue of whether she put her name on a waitlist in Tijuana.”
Justice Department attorney Alexander Halaska disputed the proper credible fear interview standard was not applied when the Cameroonian woman was deemed ineligible to seek asylum.
But when he suggested she may not have been blocked from seeking asylum at the port of entry due to metering, Bashant interrupted him.
“Wasn’t everyone subject to metering at that time period? It wasn’t possible to get to the port of entry?” Bashant asked.
Halaska said Customs and Border Protection “has discretion to take people sometimes as they approach the port,” and may have processed asylum seekers out of order from the waitlist maintained in Tijuana.
“Just because metering was in effect at the time does not mean [they were] precluded from asylum,” Halaska added.
But on rebuttal, Cassler pointed out her client was not “squarely” asked whether she was waitlisted at the port of entry.
“The government puts the burden on the applicant, but the [preliminary injunction] puts the burden on the government to comply with the court order,” Cassler said.
American Immigration Council attorney Karolina Walters argued alongside Cassler.
Bashant took the matter under submission and said she would issue a written ruling.
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