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SPLC argues in court against “turnback” policy that blocks immigrants from seeking asylum

After three MS-13 gang members threatened Dinora and her 17-year-old daughter with death, they kidnapped them from their home in Honduras and repeatedly raped them. 

The mother and daughter fled to a shelter in Mexico, but members of the same gang found them and again threatened them.

Dinora and her daughter sought asylum in the United States at a legal port of entry in August 2016, only to be repeatedly turned away by U.S. Customs and Border Protection (CBP) officers.

They’re among the many migrants who have been illegally prevented from seeking asylum at the southern border under the Trump administration’s “turnback” policy.

Today, the SPLC, the Center for Constitutional Rights and the American Immigration Council will argue against the administration’s effort to dismiss a lawsuit challenging the policy as illegal and unconstitutional. The suit, filed in the U.S. District Court for the Southern District of California, is Al Otro Lado v. McAleenan.

The turnback policy and related practices under this administration directly violate U.S. and international law, said Melissa Crow, a senior supervising attorney for the SPLC.

“The ratcheting up of this policy was one of the Trump administration’s earliest efforts to target asylum seekers and manufacture the current crisis at the border,” Crow said. “Since taking office, this administration has implemented policy after policy aimed at undermining and evading our country’s legal obligations to asylum seekers, all while demonizing them in the public’s eye.”

Under the turnback policy, CBP officers illegally restrict the ability of migrants to access the asylum process at ports of entry by lying to them, threatening them, and forcing them to stay on dysfunctional “waitlists” – often for months – in Mexican border towns.

What’s more, CBP officers force asylum seekers to make false statements about their asylum claims and sign documents they do not understand so that the officers can ship them back home, Crow said.

After Dinora arrived at a port of entry, CBP officers falsely told her that asylum was not available for people from Central America and that if she and her daughter came again they would be handed over to Mexican authorities to be deported back to Honduras. Determined, Dinora – whose name has been changed to protect her identity – tried again the next day but was again deceived by CBP officers who told her that while she could cross the border, she would have to leave her daughter behind.

Dinora stood up for herself, asserting her right to seek asylum with her daughter. But CBP officers escorted them out of the Otay Mesa port of entry near San Diego, California, and forced them to return to Mexico.

Dysfunctional ‘waitlists’

The SPLC has already survived one of the administration’s efforts to dismiss the lawsuit. The court found that CBP was engaged in an unlawful practice of turnbacks and gave the SPLC an opportunity to file an amended complaint. The amended complaint established that the turnback policy is coming from high-level administration officials. Dinora was added as one of the plaintiffs under the new complaint, in November 2018.

Meanwhile, CBP has moved its checkpoints closer to the border and shifted its conduct to tell people – falsely – that they had to “wait” because CBP did not have the capacity to process them. 

As they did with Dinora and her daughter, CBP officers have continually lied to migrants, telling them that the U.S. has a “new law” that blocks them from gaining access to the asylum process and that they are to instead seek relief in Mexico. Some migrants are even forced to declare that they are not afraid of being in their home countries – although they are – via video statements and by signing paperwork that alleges they no longer wish to seek asylum.

Other migrants never make it that far in the process because CBP officers block them from the inspection stations at ports of entry. The officers do this through a tactic that the administration calls “metering.” Under this scheme, thousands of migrants languish in dangerous Mexican border towns, waiting for a chance to seek asylum at a port because CBP officers refuse to process them unless they come from a “waitlist.”

The waitlists are administered by Mexican officials or asylum seekers themselves. Some migrants report that they are refused a spot on the waitlist simply because of their age, nationality, skin color, sexual orientation or gender identity.

That’s what happened to César, another plaintiff in the SPLC’s November 2018 amended complaint. He came to the San Ysidro port of entry, also in San Diego, seeking asylum after the 18th Street gang in his home country of Honduras threatened him with death and demanded that he join the gang. When he refused, the gang kidnapped him and kept him in an abandoned house in the mountains before he was able to escape in order to seek asylum.

At the San Ysidro port of entry, César – whose name has also been changed to protect his identity – was approached by members of “Grupo Beta,” a humanitarian organization that is sanctioned by Mexico’s National Institute of Migration. Grupo Beta touts its ability to steer migrants through the crossfire of warring drug cartels.

Stripping migrants of their rights

Members of Grupo Beta informed César that he would need to go through them to apply for asylum. They said that he would be “put on a list” and “given a number” and that only when his number was called could he apply for asylum.

Shortly thereafter, Grupo Beta members began racially segregating individuals into three groups: Africans, Central Americans and Mexicans. They placed César in the Central America group before Mexican officials arrested him and placed him into detention for 12 days. There, he was constantly threatened with deportation.  

A local shelter eventually secured César’s release, but he was still terrified for his life and returned to the San Ysidro port of entry. There, Grupo Beta again put him on a waitlist and gave him a number before he presented himself at the port of entry with two staff members from Al Otro Lado, an organization that fights for the rights of migrants and one of the SPLC’s other clients in this case.

But when César informed CBP officers that he intended to seek asylum, they refused his request. A month later, he presented himself at the San Ysidro port of entry again, only to encounter Grupo Beta again. They threatened to call Mexican immigration officials on him.  

At the time of the SPLC’s complaint, César feared he would never be granted access to the U.S. asylum process. He also believed that seeking assistance from the Mexican government would be futile.

For every day that he waited in Mexico, César was on the brink of being deported by Mexican officials, and when presenting himself at the San Ysidro port of entry, CBP officers were blocking his every move to seek asylum. But when the SPLC filed its November 2018 complaint, his entry was facilitated.

The tactics used by CBP officers are part of a policy meant to restrict access to the asylum process at ports of entry. But at the same time, the administration has publicly declared that asylum seekers must cross into the U.S. “the right way” by presenting themselves at official ports of entry.  

The turnback policy is part of the administration’s efforts to eradicate the asylum process. Since implementing the policy, it has attempted to ban asylum seekers from being eligible for asylum and has put in place the “remain-in-Mexico” policy, which forces migrants in dire circumstances to return to Mexico and wait there for their hearings in immigration court.

On April 8, a federal judge in California temporarily blocked the “remain-in-Mexico” policy, but the 9th U.S. Circuit Court of Appeals put the order on hold, pending an appeal from the administration. On May 8, the appeals court ruled that the policy will continue as the litigation plays out in federal court. This is forcing hundreds of desperate asylum seekers to wait for their immigration hearings in Mexico.

“The Trump administration is doing everything it can to sidestep its legal obligations to asylum seekers,” said Baher Azmy, legal director at the Center for Constitutional Rights. “Instead, their focus has been on stripping this population of their rights, while working to convince the American public via a campaign of misinformation that they lack the capacity to process asylum seekers at the southern border.”

 Photo by John Moore/Getty Images