Rights groups sue CBP for 'systematic' violations of U.S. asylum law

Immigration advocates and lawyers filed a class-action lawsuit Wednesday against U.S. Customs and Border Protection and Homeland Security Secretary John Kelly, arguing that CBP officers at crossings along the Mexican border have systemically violated U.S. law and international human rights agreements by refusing to allow people to seek asylum.

Filed by Al Otro Lado, a California-based nonprofit, and a half-dozen immigrants using pseudonyms, the lawsuit alleges that CBP officers at ports of entry in California, Texas and Arizona have used a range of tactics to rebuff people seeking asylum in the United States, including "misrepresentations, threats and intimidation, verbal abuse and physical force, and coercion." 

In some cases, CBP officers allegedly told asylum seekers that they could not apply for asylum because "Donald Trump just signed new laws saying there is no asylum for anyone."

 In other instances, officers allegedly threw away documents, threatened people to get them to recant their stories, and told parents that they would separate them from their children if they pushed forward on their asylum claims.

"CBP has been emboldened by the anti-immigrant rhetoric around the election," said Erika Pinheiro, policy director at Al Otro Lado, adding that CBP officers have "unilaterally undone decades of policy" surrounding the treatment of asylum seekers in the United States. 

Along with Al Otro Lado, the lawsuit includes the American Immigration Council, the Center for Constitutional Rights, and the law firm Latham & Watkins, LLP.

Katie Shepherd, a legal fellow with the AIC, said that advocates had collected dozens of sworn accounts for mothers and children who sought asylum, as well as adults and even unaccompanied minors who were refused the chance to ask for asylum, despite stating a credible fear of returning to their home countries. 

In Texas, some asylum seekers were rejected on multiple occasions, and after being turned back women with children attempted to enter the United States by crossing the Rio Grande River, even when they could not swim, Shepherd said. 

CBP officers used a range of excuses to deny asylum seekers, in some cases, they told asylum seekers that "there was no asylum here" or that they must have visa to enter the United States. Some said they were forced to recant their asylum claims on video after they were threatened and berated for hours on end, Shepherd said. 

"We have exhausted all options available to us," Shepherd said. "Everyday that this practice continues is another day another asylum seeker will be sent back." 

In a statement released in May, a spokesman said that "CBP has not changed any policies affecting asylum procedures" and that "as an agency CBP does not tolerate any kind of abuse."

"If an officer or agent encounters a U.S.-bound migrant without legal papers and the person expresses fear of being returned to his/her home country, our officers processes them for an interview with an asylum officer," the spokesman said. "CBP officers are not authorized to determine or evaluate the validity of the fear expressed. The applicant does not have to specifically request asylum, they simply must express fear of being returned to their country." 

On Wednesday, a spokesman said that CBP does not comment on pending litigation. 

However, over the past year multiple humanitarian and immigrant advocacy groups have reported that CBP officials are denying asylum claims. In 2016, the bipartisan U.S. Commission on International Religious Freedom said that some CBP officers express "outright skepticism, if not hostility, toward asylum claims." 

In January, the AIC, along with eight other groups filed their own complaint, asking CBP to investigate allegations that officials in Texas and California were already denying people access to the asylum process. 

A few months later, in May 2017, Human Rights First issued a report based on 125 cases where CBP officers had wrongfully refused to allow access individuals and families to enter the United States under asylum law, a practice the group said "proliferated after the November 2016 election and persists even as the number of arrivals has fallen sharply." 

And, in June, Amnesty International released their own report with similar findings.

'Stunning disregard'

In response to the accusations, U.S. Reps. Raul Grijalva and Norma Torres (D-CA), sent a letter to DHS demanding an "immediate investigation into claims that adult men and women, families, and unaccompanied minors fleeing violence and persecution" were denied the ability to pursue asylum in the United States.  

"It is alarming to learn that there have been several cases where individuals seeking asylum in our country for credible fear of violence, rape, and even death are reportedly being blatantly denied that right," Grijalva said. "Unfortunately, this is not the first instance in which reports of the Department of Homeland Security personnel under the direction of Secretary Kelly has faltered on proper protocol for sensitive immigration activities."

Torres wrote that she was "simply shocked at these reports" and said the administration has shown, "a stunning disregard for the values that make this the greatest nation on Earth." 

Advocates suspect that the pattern of rejections is not from individual acts, but rather represents some change in policy, and hope that the discovery process as part of a legal claim may shed light on whether senior Homeland Security officials or port directors are issuing orders that keep asylum seekers in Mexico. 

This includes a 32-year old Honduran woman, identified only as Maria Doe, who said she fled her country in November with her 13- and 11-year-old sons to escape threats from members of MS-18, and "ongoing abuse" from the boys' father. 

Their journey took more than two months, in part because her oldest son suffers from cerebral palsy, and as they traveled through Guatemala he had a seizure. Finally in January 2017, the family reached Piedras Negras, a border town about 130 miles southwest of San Antonio, Texas, and asked for asylum. An immigration officer at the Eagle Pass port of entry asked for their passports, and then told her that "the official who deals with those issues wasn’t there and that we should come back later," she said in Spanish. 

The family stayed around the port and waited, but after two hours, another officer arrived and told her that the official who deals with asylum cases was not coming and that he was not accepting any more people because "the law giving asylum to Central Americans had ended the day before." 

In the lawsuit, one women identified as Dinora Doe said that members of MS-13 repeatedly threatened to kill her and her 17-year-old daughter if they did not leave their house. The women fled, but eventually returned and the gang members held them captive for three days and repeatedly raped her and her daughter "each of them in front of the other." The women fled to a shelter in Mexico, but even there members of MS-13 followed them and continued to threaten their lives.

In August, they reached the Otay Mesa port of entry south of San Diego and asked for asylum three times, and were turned away each time by CBP officials, the complaint said. 

During their first attempt, a CBP official allegedly told D.D. that there was no asylum in the United States and escorted her and her daughter out of the port. During her second attempt later that day, a CBP official allegedly told her that there was no asylum in the United States for Central Americans and if they returned they would be handed over to Mexican officials and deported to Honduras. During their third attempted, D.D. said that a CBP official said that she could pass through the port, but that she would have to leave her daughter behind. 

The two women remain in Tijuana, but are still seeking asylum especially after a person connected to MS-13 allegedly called D.D. in June in attempt to to discover her location in Mexico. 

"These systematic processes violate clear and long-standing legal obligations," said Baher Azmy, legal director for the Center for Constitutional Rights.

These obligations include the Refugee Convention of 1951, a multilateral treaty that prohibits a nation from returning "a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." 

In 1980, the United States updated its own immigration laws surrounding asylum seekers. 

"The tactics deployed are a microcosm of a broader systemic abuse to shut down asylum along the border," said Azmy. 

Azmy said that the motion seeks emergency relief for the half-dozen women currently seeking asylum by permitting them to enter the U.S. immediately, and demands that the court review "unlawful practices," and add accountability to what he called an "increasingly rogue agency."