Judge finds policy of turning back asylum-seekers unconstitutional

SAN DIEGO (CN) — Legal nonprofit Al Otro Lado and 13 immigrants turned back from making asylum claims at ports of entry along the U.S.–Mexico border proved the "metering" policy violates rights enshrined in the Administrative Procedure Act and Constitution, a federal judge ruled Thursday.

Now U.S. District Judge Cynthia Bashant is tasked with deciding what kind of legal fix should be instituted to make up for the months — or years — thousands of mostly Central American immigrants spent “waiting their turn” to cross into the U.S. to seek international protections implemented globally in the aftermath of the Holocaust.

In a 45-page-order Thursday, Bashant — a Barack Obama appointee — found the policy, first implemented during Obama’s last months in office at the San Ysidro Port of Entry in 2016 in response to the influx of Haitian immigrants seeking to claim asylum in San Diego, was unconstitutional.

Bashant found U.S. Customs and Border Protection officials’ “agency action” of turning back asylum-seekers arriving at ports of entry to Mexico violated their mandatory duties to inspect and refer asylum-seekers.

She rejected the federal government’s argument inspection and referral duties were not unlawfully withheld — only delayed.

“The record contains undisputed evidence that in 2016, 2017, and 2018, CBP officers did not carry out their discrete statutory duties to inspect and refer asylum seekers to start the asylum process once they arrived at POEs; instead, defendants stationed CBP personnel at the limit line to ‘turn away’ or ‘push back’ asylum seekers as they reached POEs,” Bashant wrote.

Bashant reiterated her previous finding the APA applies to those immigrants “in the process of arriving” but who are physically outside the U.S., noting finding otherwise would be contrary to the Department of Homeland Security’s own definition of “arriving aliens” as “attempting to come into the United States at a port of entry.”

She added: “If immigration officers can forgo inspection upon an asylum seeker’s first arrival and defer this duty to some unspecified future arrival without flouting the statute, the first arrival loses legal significance … if the statute is construed in this way, this would permit defendants to turn back asylum seekers any number of times — perhaps indefinitely — without running afoul of their statutory obligations.”

Turning back or “metering” asylum-seekers at ports of entry makes seeking protection through appropriate legal channels more difficult than if an immigrant were to enter the country illegally, Bashant wrote.

And creating additional logistical barriers to the asylum process through repeat trips to ports of entry, waitlists maintained by Mexican immigration officials and causing asylum-seekers to wait in dangerous Mexican border towns “resulted in asylum seekers’ deaths, assaults, and disappearances after they were returned to Mexico,” Bashant wrote.

The question of agency discretion was not one the court or immigration officials could take up, she added.

If immigration officials have “legitimate” constraints that prevent them from fulfilling their duties to inspect and process asylum-seekers arriving to the U.S. that's an issue which must be taken up by Congress, Bashant added.

Likewise, Bashant found turn backs of asylum-seekers violates their due process rights guaranteed by the Fifth Amendment because immigration officials unlawfully withheld their duties to inspect and process class members.

Bashant did reject the immigrants’ claim for violation of the international “norm” of non-refoulement enshrined in the Alien Tort Statute, finding the “norm” is not universally applied, as many countries — including in Europe and Australia — have “sealed“  borders from asylum-seekers.

The “norm” forbids the government from returning an individual to a country where they have a well-founded fear of persecution, torture or harm.

But because there has been international disagreement of how non-refoulement should apply worldwide, Bashant declined to make a judicial determination regarding how it applies to immigrants just beyond the U.S. border.

“Given both controlling case law and the ongoing debate over the proper scope of countries’ jurisdictions, the court regrettably cannot find that this norm is universally applied beyond borders. As such, the court finds that the duty of non-refoulement as it applies to migrants at the border but physically outside the territorial United States is not a norm from which no derogation is permitted,” Bashant wrote.

A spokesperson for the Southern Poverty Law Center, which represents Al Otro Lado and the immigrants did not immediately return a request for comment, nor did the Department of Homeland Security.

The parties were ordered to submit additional briefing on what relief should be instituted by the court by Oct. 1.

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