Judge called on to rule against US refoulement of asylum seekers

A federal judge in San Diego may soon decide whether the United States is required by law to treat asylum seekers when they show up at ports of entry.

The case, first filed over 4 years ago, challenges a practice that sends asylum seekers back to Mexico when they attempt to seek protection at points of entry along the southwest border . The policy began under the Obama administration at the San Ysidro port of entry before spreading across the border in November 2016. It was amplified under former President Donald Trump.

At a hearing Tuesday, lawyers representing asylum seekers and Al Otro Lado, a legal services organization that supports migrants in Tijuana, argued that the return policy is illegal and should be permanently blocked. Lawyers for the Department of Justice argued that the policy does not exist, that it is ending soon, and that federal agencies can delay doing what they are legally required to do.

Immigration law requires the United States to screen migrants who fear returning to their countries of origin to obtain refugee status through the asylum system if they reach American soil.

“It is time for this painful chapter to end,” lawyer Stephen Medlock, representing the plaintiffs, told Judge Cynthia Bashant on Tuesday. “It is time for this tribunal to turn the page and end it. “

A Honduran woman who is part of the case shared her experiences of refoulement from the United States as she tried to seek asylum during an appeal with reporters the day before the hearing.

She said she had to sleep in parks and struggled to get enough money to buy food while she waited for months in Tijuana on the waiting list.

“They are judging us for having fled our country to another and for coming to the United States,” she said. “We all came here because we want to survive. “

Nicole Ramos, director of the Al Otro Lado Border Rights Project, said another woman who was turned away from a port of entry with her 3-year-old child was later kidnapped and raped in front of her child. When the woman returned to the port of entry, disheveled by the ordeal, authorities still refused to treat her.

If Bashant sides with the plaintiffs in his decision, it could dramatically change the experience of asylum seekers at the southwest border, who are currently generally unable to seek protection at points of entry.

The Union-Tribune first documented the refoulement reports in early 2017, and because of them, at the end of the year there was a line of asylum seekers waiting for days or weeks to request protection at the port of entry of San Ysidro. In 2018, the queue evolved into a waiting list, a log kept by Mexican immigration officials who would receive communications from their US counterparts on how many people on the list could enter the United States on this day, a process often referred to as “counting.” ”

Other local entry points have refused to take anyone, while Trump administration officials urged asylum seekers to proceed to entry points instead of crossing illegally.

At the time, customs and border protection said the limit at ports of entry was due to capacity constraints. In a statement filed in connection with the trial, a CBP whistleblower who worked at the Tecate port of entry said that was a lie. This was also suggested by a report from the Inspector General’s office last year.

The waiting list continued until the start of the pandemic, when ports of entry completely stopped processing asylum seekers.

Ramos said many of Trump’s policies that restricted access to asylum were made possible by the counting policy.

“Many of us who were at the border when the counters started with Haitian immigrants were shouting in the wind, ‘They’re making waiting lists! They keep people waiting! and the pushback, even among colleagues, was, “It’s an unusual pattern of migration, and it’s just Haitians and just for this little time,” Ramos said. “Then, only Haitians only became black migrants. Then it started to include Central Americans, then Mexican citizens who have to put on a waiting list to flee their own country, and often the waiting lists are managed by representatives of the government of the country they were trying to flee. . “

At the hearing, Medlock, of Mayer Brown LLP, said the policy goes against the Administrative Procedure Act, which requires federal agencies to follow certain protocols before making changes to the policy, as well as to the immigration law itself. He said the policy of refoulement of asylum seekers gave border authorities “false discretion”.

“There is no wiggle room,” Medlock said.

Baher Azmy, legal director of the Center for Constitutional Rights, also arguing for the plaintiffs, said that in addition to the violations cited by Medlock, the policy also goes against international law that countries cannot return asylum seekers to other countries where they are. risk of harm. This principle, known as non-refoulement, arose in the aftermath of the Holocaust because countries, including the United States, rejected Jewish asylum seekers and returned them to death at hand. of the Nazis.

Azmy urged the judge to be the first in the country to recognize international law in her decision making. This had not happened before, he said, as the current situation is unique in U.S. history since the law was passed.

“This is a historic case of large-scale pushback,” Azmy said.

The judge questioned this point, not because she believed the government’s actions followed the principle, but rather because she was not sure that international law had actually become a standard.

“It is not the only country that is grappling with the problem of refoulements,” Bashant said.

Advocating on behalf of the federal government, Alexander Halaska said the Department of Homeland Security’s “queue management policies,” another name for meters, would be revised and repealed in 60 days.

He also said the policy the complainants were trying to end did not exist.

“The plaintiffs are challenging a policy of ‘T’ Turnback ‘P’ of capital,” said Halaska. “There is no such thing.”

When Halaska said agencies could implement such policies based on assessments of their operational needs, Bashant was quick to repeatedly press the government’s argument.

The judge said she would make her decision and then ask for more information on how to move forward on the basis of that decision. She said it might take her a little while as she is one of five judges currently hearing cases in court and overwhelmed with criminal cases.

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