U.S. Illegally Denying Immigrants Their Right to Seek Asylum at the Mexican Border, According to Lawsuit

The Trump administration may be engaged in widespread violations of U.S. and international law at the southern U.S. border, according to new filings in a California lawsuit. The filings offer the latest piece of evidence of a systematic campaign aimed at turning away asylum-seekers, actions linked to the embrace of hard-line immigration enforcement policies at the heart of the president’s rise to power.

On Tuesday, immigration attorneys in the Central District of California filed a motion for class-action certification that would allow six asylum-seekers from Mexico and Honduras to stand in for individuals affected by an alleged pattern of illegal practices on the part of U.S. Customs and Border Protection. The class-action suit would include all the immigrants who, since June 2016, have or will be denied their right to secure asylum in the U.S. because of the CBP practices.

Building on a complaint filed in July, the suit argues CBP officials at numerous ports of entry, or POEs, throughout the southwest have displayed a similar set of “unlawful practices” designed to deny individuals their right under the law to apply for asylum.

“Since at least June 2016,” the motion reads, “CBP officers at POEs along the U.S.-Mexico border have been consistently turning away — through an identifiable set of tactics including, misrepresentations about U.S. asylum law and the U.S. asylum process, threats and intimidation, verbal and physical abuse, and coercion — significant numbers of individuals who express an intent to apply for asylum or a fear of returning to their home countries.”

There was no denying a shift in CBP practices over the last year, said Erika Pinheiro, director of policy and technology at Al Otro Lado, speaking to The Intercept from Tijuana, Mexico, where many asylum-seekers in the lawsuit have taken refuge in local shelters after being denied entry into the U.S. Al Otro Lado, a Los Angeles-based nonprofit legal services organization, first brought the legal challenge to the CBP policies.

“There’s always been cases of individuals being turned away, but it was kind of the exception, not the rule. It really changed when Trump was elected.”

“There’s always been cases of individuals being turned away, but it was kind of the exception, not the rule,” Pinheiro explained. “It really changed when Trump was elected.”

“It was almost as if they closed the southern border to asylum-seekers when Trump was elected, not even inaugurated, just elected,” Pinheiro said. “After November, it was incredibly difficult — even escorted by an attorney, we would see people turned away by CBP.”

Multiple U.S. statutes and governing regulations, including due process rights guaranteed under the Fifth Amendment, grant noncitizens fleeing violence abroad the right to apply for asylum in the U.S. Meanwhile, international treaties prohibit the U.S. government from returning individuals to countries where they have a well-established fear of persecution or torture. Despite these protections, the suit brought by Al Otro Lado, in conjunction with the Center for Constitutional Rights, the American Immigration Council, and the law firm Latham & Watkins LLP, offers multiple accounts of U.S. immigration officials preventing asylum-seekers from engaging in even the earliest stages of the process for asylum relief. The accounts are backed up by extensive media reports and broader human rights investigations into the alleged practices.

Using pseudonyms out of a fear of retribution, the plaintiffs in the case — five women and one man —offered harrowing accounts of why they and their loved ones fled their home countries. They described the murder and decapitation of parents, repeated experiences of domestic and sexual violence, and unrelenting persecution by the most murderous criminal groups in the Western hemisphere. Their stories reflect a broader experience of terror that has gripped large swaths of Central America and Mexico, areas that have in recent years consistently ranked among the most violent in the world. Each of the plaintiffs detail how, upon arrival to a U.S. port of entry, they were met with hostility, intimidation, and outright lies regarding the obligations of American immigration authorities under the law.

In their suit against the government, the immigration attorneys for the asylum-seekers identify several alleged CBP practices observed in their clients’ cases and others. Those misleading and unlawful practices are said to include CBP officials falsely telling arriving asylum-seekers that asylum is not available at that particular POE, and that they would need to try elsewhere; that they cannot apply for asylum because there is not enough space at the location; that they first need to check in with Mexican authorities before applying in the U.S.; or that the U.S. government has simply stopped granting asylum altogether. The suit also describes CBP officials using “threats and intimidation” to deter individuals from exercising their right to apply for asylum, including “threatening to separate parents from their children” and forcing asylum-seekers who have made it into a port of entry “to recant their fears or otherwise to withdraw their applications for admission to the U.S.”

A spokesperson for CBP declined to answer questions for this article, saying the agency does not comment on pending litigation. In a July article for The Intercept, published when the initial lawsuit was filed, the agency said it had “not changed any policies affecting asylum procedures” and that CBP “adheres to law and policy on processing asylum claims and does not tolerate abuse of these policies.”

Central American migrants seeking for asylum in the United States, walk to the U.S.-Mexico border at El Chaparral port of entry on Nov. 12, 2017, in Tijuana, Mexico.

Immigration advocates on the border see clear ties between the nativist polices of the Trump administration and the allegedly unlawful practices of CBP officers working the nation’s southern ports of entry.

In the motion filed Tuesday, Diego Iniguez-Lopez, a legal services associate working out of the South Texas Family Residential Center in Dilley, Texas, recalled an incident following last year’s election. An asylum-seeking mother had presented her foreign identification documents to a CBP officer at the Hidalgo/McAllen land crossing between Mexico and Texas. According to Iniguez-Lopez, the officer “started singing Donald Trump’s name and saying that there was no more asylum for immigrants. The same officer reportedly laughed as he sang and then told her that Donald Trump had signed a new law saying that there was no asylum for anyone.” Iniguez-Lopez added, “Another mother reported that a CBP officer told her that asylum was not available because the new president had given them orders.”

“They were telling us stories of how CBP officers were singing the national anthem and taunting them.”

Speaking to The Intercept, Iniguez-Lopez said the first sign of a change in attitude among immigration officials at the Texas family detention center came a week after Trump’s election, from individuals held in so-called hieleras, or ice boxes, the freezing-cold rooms where U.S. authorities house asylum-seeking families and other undocumented immigrants. “They were telling us stories of how CBP officers were singing the national anthem and taunting them,” Iniguez-Lopez said, “and telling them that they’re going to be deported back to their country and to tell their family not to come.”

Iniguez-Lopez went on to say that the practice of turning asylum-seekers away at ports of entry in his area of the country appeared to begin in early December. One of the first of those incidents, he explained, involved a mother from Central America seeking asylum with her family. The immigration officer who met with the family at the port of entry “said that under the orders of Donald Trump, there’s no more asylum for mothers with children, and the response of the mother was to say the Trump administration, they’re not even in power, they haven’t been inaugurated. So she knew more government 101 than the officer himself,” Iniguez-Lopez said.

Iniguez-Lopez and other advocates gleaned from the emerging accounts that “even without any administrative change, CBP officers on the ground had the impression that their candidate won, that they had the ability to ‘do the job,’ and that some of the things that they might otherwise want to do, they now could do.”

Allowing immigration officials — whether CBP, Border Patrol or U.S. Immigration and Customs Enforcement — to “do the job,” as Iniguez-Lopez put it, has been a consistent theme of the Trump administration. Prior reporting has indicated a shift in practices that began before Trump assumed office. Four days before Trump’s inauguration, the Washington Post published a story citing advocates and migrants who described “hundreds or perhaps thousands of foreigners who have been blocked in recent months from reaching U.S. asylum officials along the border.” Following Trump’s inauguration, human rights groups continued to document incidents of people stopped by U.S. officials from beginning the asylum process, with Amnesty International’s Americas Director Erika Guevara-Rosas arguing that the U.S. and its government partners in Mexico were “brewing up a burgeoning human rights catastrophe.”

A U.S. Border Patrol agent climbs up from the bank of the Rio Grande at the U.S.-Mexico border on March 14, 2017 in Roma, Texas.

In Tuesday’s filing, attorney Brantley Shaw Drake, a former fellow with the Refugee Protection team at Human Rights First, an organization that has documented the alleged prevention of individuals from entering the asylum process, documented several dire consequences of the practice. Directors of migrant shelters described to Drake how asylum-seekers clustered near ports of entry south of the border have become easy kidnapping targets for organized crime — with one shelter director describing hundreds of asylum-seekers held for ransom in large homes around Reynosa, Mexico, and another claiming she “had received 30 escapees from kidnapping in the last 30 days.”

The similarities in the accounts of CBP actions provided by plaintiffs, journalists, and human rights investigators — and the reported fallout from those practices — have immigration attorneys hopeful that the California case will receive class-action certification, meaning its outcomes would apply beyond those who came forward with their individual experiences. “This is the evidence that says these practices are systematic, they’re happening all along the border,” Caroline Walters, a staff attorney at the American Immigration Council, told The Intercept. “And not only have they been happening, they’re continuing to happen — which is why we’re asking the judge to certify a class that would insure that the relief that could be obtained through the lawsuit would not just apply to the individuals who were brave and brought the suit, but also to others that had or will experience those practices.”

If the suit is successful in securing both declarative and injunctive relief, Walters explained, it would mean that the judge in the case both declared the alleged CBP practices unlawful, and that they should be considered unlawful going forward. In other words, Walters said, it would mean “[CBP] cannot prevent asylum-seekers from gaining access to the asylum process through the tactics we describe in the lawsuit or any others,” while laying the groundwork for officers who engage in those practices in the future to be held accountable.

The next hearing in the suit is scheduled for December 11, but any resolution in the case is a long way off. For now, immigration attorneys on the border continue to work to see that individuals fleeing violence and persecution have their legal right to apply for asylum upheld. Pinheiro, of Al Otro Lado, was fresh off a trip to the border when she spoke to The Intercept from Tijuana on Tuesday. Recently, she explained, advocates have taken to accompanying asylum-seekers in caravans to U.S. ports of entry in hopes that their presence will deter U.S. immigration officials from breaking the law. “It’s just to have as much attention on the issue as possible, to ensure that people are actually accepted,” Pinheiro said. “We shouldn’t have to do that, but that’s kind of what we’ve come to.”

Top photo: Central American migrants seeking for asylum in the United States, walk to the U.S.-Mexico border at El Chaparral port of entry on Nov. 12, 2017, in Tijuana, Mexico.