SAN DIEGO (CN) — A federal judge Tuesday was tasked with deciding a historic case challenging the Trump-era policy of turning back asylum seekers in search of refuge at the U.S.-Mexico border in a case which could set international precedent on border jurisdiction and human rights claims.
U.S. District Judge Cynthia Bashant, a Barack Obama appointee, noted during the court hearing in the Southern District of California on Tuesday, “This is not the only country that has been struggling with pushbacks.”
“It’s important not to impose what I think,” Bashant said, in recognizing her decision on cross-motions for summary judgment in the case, Al Otro Lado v. McAleenan, could have implications for international human rights law and “norms” related to making claims for asylum at international borders.
Bashant previously blocked the Trump administration from deporting immigrants who would have made asylum claims at ports of entry and entered immigration proceedings but for the government’s “metering” policy, which, beginning in 2016, prevented pedestrians from crossing the border based on capacity limit claims by U.S. Customs and Border Protection.
Last year Bashant certified the class action — brought by legal nonprofit Al Otro Lado and 13 asylum seekers in 2017 — paving the way for thousands of mostly Central American immigrants to seek protection in the United States.
At issue throughout the case has been the question of how to define “arriving” as it applies to immigrants seeking to cross ports of entry into the U.S. from Mexico.
Mayer Brown attorney Stephen Medlock, arguing for Al Otro Lado and the asylum seekers, said in the Zoom hearing Tuesday that the Administrative Procedure Act does not give CBP officials discretion when it comes to processing asylum seekers.
“Once an asylum seeker is in the process of arriving in the U.S. they must be inspected and processed,” Medlock said.
But the novel question Bashant was asked to decide by asylum seekers is whether the metering turnback policy violates the international “norm” of non-refoulement enshrined in the Alien Tort Statute.
The international legal principle — adopted after the Holocaust — forbids a government from returning an individual to a country where they have a well-founded fear of persecution, torture or harm, whether it be the person’s home country or another country.
The asylum seekers argued the U.S. violated the international human rights principle by returning mostly Central American citizens to Mexican border towns that are so dangerous U.S. State Department employees are prohibited from traveling to them.
A federal court has not recognized the norm of non-refoulement, Center for Constitutional Rights attorney Baher Azmy, arguing on behalf of the asylum seekers, told Bashant Tuesday.
“This is a historic instance of refoulement on a mass global scale,” Azmy said.
Justice Department attorney Alexander Halaska told Bashant the “human management policies” at issue in the metering case are currently under review by Biden’s administration and the Department of Homeland Security plans to rescind metering guidance within 60 days.
He said metering policies are geared toward preventing “emergencies” due to capacity limits at ports of entry before they occur.
But Bashant pushed back on Halaska’s characterization of metering as a “discrete agency action.”
“If you have bona fide operational needs in violation of a statute, don’t you have to go to Congress to ask to change the statute?” Bashant asked, suggesting inspecting and referring people for asylum was a “discrete agency action they didn’t do.”
Halaska responded the government didn’t abandon its duties at the border.
“The government did continue to process undocumented noncitizens at the border — so it did not fail to meet statutory requirements,” Halaska said.
Bashant took the matter under submission and will issue a written ruling.
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