Judge advances lawsuit over mobile app for asylum applications

A federal judge on Tuesday declined to dismiss a group of asylum seekers' objection to the Department of Homeland Security's use of the CBP One app, a smartphone application developed by U.S. Customs and Border Protection for immigrants, including asylum seekers.

Two immigrant rights nonprofits and 10 unnamed asylum seekers claim the U.S. has implemented an unwritten law that turns away anyone seeking asylum at a port of entry along the southern border who has not first applied through the CBP One app.

The rule makes it impossible for many non-citizens to schedule an appointment to appear at a port of entry, the groups say in their complaint filed in July 2023 in the Southern District of California.

“Some do not have access to up-to-date smartphones, Wi-Fi, a cellular data plan or reliable electricity, all of which are necessary to use CBP One. Others do not understand the few languages ​​used in the app, are illiterate, “they lack technical know-how or have disabilities that prevent them from successfully navigating the app,” the plaintiffs write.

The unwritten “CBP One Turnback Policy,” the groups say, “is just the latest manifestation of the administration's multi-year effort to block asylum access for asylum seekers heading to the southern border.”

The US government disputes the existence of such a policy and filed a motion to dismiss the complaint.

On Tuesday, U.S. District Judge Andrew Schopler agreed to dismiss certain parts of the lawsuit, including parts seeking to ban Mexican officials from cooperating with Border Patrol agents and a claim under the Alien Tort Statute.

The plaintiffs, Schopler wrote in his ruling, failed to show that the alleged policy constituted a violation of a generally accepted international norm, pointing out that other reversal measures “have been implemented in some European Union member states and Australia.”

The rest of the complaint, Joe Biden appointee Schopler ruled, could stand, including a claim for violation of the Fifth Amendment and claims under the Administrative Procedure Act.

“The plaintiffs’ case is not about the right to asylum, but rather the right to be screened and processed upon first presentation at a port of entry – and not to be turned away,” Schopler wrote. “At least they were denied that right by the rejection. In other words, “in each rejection, CBP erroneously concluded that plaintiffs had no “right” to inspection and asylum processing prior to their return to Mexico.”

Nicole Elizabeth Ramos of Al Otro Lado, one of the plaintiff groups, criticized the government's response to the lawsuit in a written statement following Tuesday's ruling.

“While the government denies that there is a CBP One return policy, the amount it spends on litigation to prevent refugees from being processed upon arrival at U.S. ports of entry belies its true intent, which is not one “Rather, the aim is to deter, delay and deny refugees access to the only legal recourse available to them to save their lives,” Ramos said.

“[W]“We look forward to presenting our evidence in court, evidence provided through the words and actions of the CBP officers themselves,” she continued.

Border crossings have increased dramatically since 2020. About a third of them were asylum seekers. In June, President Biden announced a new policy that will turn away the vast majority of asylum seekers until the number of people trying to cross the border illegally falls below 1,500 per week.

On Monday, Biden expanded that policy to require 28 consecutive days of illegal border crossings below 1,500 before lifting the asylum ban. The American Civil Liberties Union and other groups have also sued to overturn the policy.