On April 8, a family came to the San Ysidro port of entry in Tijuana and asked to be let into the United States to seek asylum. The husband’s arm was bleeding. He’d been shot. The cartel that had driven him and his family from Jalisco the previous fall, when he refused to cooperate with them as a local official, had now tracked them to Tijuana.
According to the wife, identified only as Isabel Doe in a court filing made Wednesday in the Southern District of California, the family begged U.S. Customs and Border Protection officers to let them through the gates.
“We showed CBP officers my husband’s bleeding wound and explained the immediate danger we were in,” Isabel testifies. The officers refused. They told the family that since they didn’t have an appointment for the day via the CBP One app, they had no right to flee the cartel.
Isabel Doe and her children finally got a CBP One appointment in July 2023. The appointment no longer included her husband. On May 1, while the family headed to the Tijuana airport in an attempt to flee to Canada, they were attacked again. A car with two men in it rammed their own, and the passenger leapt out to shoot Isabel’s husband. He died in front of their 5-year-old daughter and 4-year-old son.
Isabel Doe’s story is one of several testimonies collected by the American Immigration Council, as part of a lawsuit brought on behalf of Al Otro Lado and Haitian Bridge Alliance challenging CBP’s continued turnbacks of asylum seekers at ports of entry. The Southern District has already declared turnbacks to be unlawful, under a previous lawsuit that the Council filed with Al Otro Lado and other partners under the Trump administration.
But since the creation of the CBP One app and its use to schedule appointments at ports of entry for asylum screening – 1,450 of which are available via a daily lottery – the testimony demonstrates that CBP officers have consistently used the app as an excuse to refuse entry to anyone without an appointment, even when they are fleeing, as Isabel Doe’s family was, imminent mortal harm.
The “turnbacks” of asylum seekers who don’t have CBP One appointments, the lawsuit alleges, is in contravention of U.S. law. It’s in defiance of international obligations not to return people to countries where they may be persecuted and contradicts the government’s explicit and recent promises that asylum seekers will not be refused entry to the U.S. on this basis.
Most recently, the text of the “asylum transit ban” regulation codified this spring – which creates a much harder and more limited asylum process for most non-Mexican asylum seekers who don’t use CBP One – says that “individuals without appointments will not be turned away.” (Instead, even those who are subject to the transit ban are supposed to be given the chance to demonstrate that they meet one of the ban’s exemptions– and are supposed to be screened for humanitarian protection regardless.) But that’s exactly what happened to Isabel Doe and the 11 other asylum-seekers who have offered declarations in the lawsuit.
The declarations shed light on an arbitrary practice that is often opaque to the public. They make the case that every day CBP keeps turning people back puts them at risk of irreparable harm. Accordingly, the asylum seekers represented by the Council are asking for a preliminary injunction to halt the turnbacks of asylum seekers without appointments.
Several of the asylum seekers who submitted testimony to the court are Mexican, which is significant for two reasons. First of all, Mexican citizens aren’t subject to the transit ban – which means that, unlike non-Mexicans, there is no official reason not to come to a port of entry without a CBP One appointment. Secondly, by turning back Mexicans who are trying to flee persecution in Mexico, CBP officers risk sending them back to persecution and harm – like Isabel Doe’s husband – in a particularly egregious violation of the international principle of non-refoulement. The lawsuit alleges that Mexican officials continue to help the U.S. government prevent asylum seekers from setting foot on U.S. soil, including physically removing people at CBP agents’ request.
Theoretically, there are lines at some ports for asylum seekers who urgently need to enter the U.S. and don’t have appointments. That’s consistent with what the government has said – that people with appointments are given preference, and those without appointments will still be allowed to present themselves at the port and access the asylum process (even though the government uses capacity as an excuse and has been caught lying in the past by its own Office of Inspector General about whether space is available). But in Nogales at the end of July, people waiting in line told the Kino Border Initiative that “they had been waiting and sleeping there for 22 nights and still had not been processed.”
Meanwhile, asylum seekers are stuck waiting in unsafe conditions. Guadalupe Doe (another pseudonym) testified that her children have been sick with stomach issues, which she believes is because the shelter is “serving us food that is weeks, and in some cases over a month, past its expiration date.” (The shelter bars them from bringing in their own food.)
“Our beds are full of bed bugs,” Laura Doe testified. “My children and I are covered in bites. But we almost never leave the shelter because we are scared.”
At the other end of the border, in Matamoros, Natasha Doe and her five-year-old daughter, who live in a tent in an abandoned gas station, are often undernourished and dehydrated: “As I prepare this declaration now, my child and I haven’t eaten for more than 24 hours.”
The testimony demonstrates that the CBP One app does, sometimes, work – some of the asylum seekers have received appointments, although usually after months of waiting. But it often doesn’t.
One asylum seeker testified that – when the app didn’t just show him a blank screen or “illegible computer code” – it demanded an update he couldn’t download: “Every time I attempt a new update my phone displays an ‘error, request timed out’ message, cancelling the attempt and forcing me to start over.” Another has been told repeatedly that she can’t register because she isn’t in northern or central Mexico – an odd notification to get while sitting in a Tijuana shelter.
The federal government claims that its current lottery system favors those who have been waiting the longest, to prevent anyone from being stuck indefinitely in conditions like the complaint describes. But as the declarations make clear, a more recent “registration” doesn’t mean that someone hasn’t been trying to use the app for months. Confusion about how the app works, and what the best way to get an appointment is, has led many asylum seekers to register multiple times as part of different groups. In some cases, families have had to separate themselves to secure entry into the U.S.
Isabel Doe’s teenage stepson, for example, was allowed to enter the U.S. as an unaccompanied child. She doesn’t know exactly where he is, she testifies, because she and her stepchildren have deliberately cut off contact in case one of them is caught and interrogated by the men who killed her husband.
And then there are the asylum seekers who can’t reliably use the app because they can’t afford to buy new cell phones – like Michelle Doe, whose phone was smashed by her abusive partner when he found out she hadn’t given their one-month-old daughter his last name. The attack led her to flee his home, but also prevented her from using the app that CBP officers now treat as the only way to get into the U.S.
Michelle Doe is still living in Tijuana, and fears that her ex will successfully track her down. If CBP is allowed to keep turning people back who are in imminent harm, it’s impossible to say that she and her daughter will find safety before – like Isabel Doe’s husband – they run out of time.
FILED UNDER: Customs and Border Protection