‘Immoral’ CBP One App Policy Sees Asylum-Seekers Turned Away at U.S. Border, Class Action Claims

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A proposed class action filed by two non-profit immigrant rights organizations and a group of asylum-seekers squares off against the government’s allegedly “unconscionable and immoral” practice of turning away noncitizens at the U.S. border who do not have appointments via the CBP One app.

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The 72-page lawsuit says that under a widespread “turnback” policy, asylum-seekers who arrive at ports of entry (POEs) along the southwest border without an appointment made through the reportedly unreliable and prohibitive Customs and Border Protection (CBP) smartphone application are unlawfully turned back to Mexico and denied access to the asylum process.

According to the suit, the border-wide practice deprives migrants of their constitutional right to due process and violates international law as well as the federal Immigration and Nationality Act, which stipulates that any noncitizen arriving in the U.S. must be allowed to seek asylum whenever they present themselves at a POE. The case argues that the “turnback” policy also contravenes the CBP’s own internal guidance issued in a November 2021 memorandum, which specifies that “a CBP One appointment is not a prerequisite for inspection and processing at a POE.”

The complaint names as defendants Secretary of the U.S. Department of Homeland Security Alejandro N. Mayorkas, Acting CBP Commissioner Troy A. Miller and Acting Executive Assistant Commissioner of CBP’s Office of Field Operations Diane J. Sabatino.

Spearheading the case are plaintiff organizations Al Otro Lado, Inc. and the Haitian Bridge Alliance, as well as 10 noncitizens who presented themselves at POEs along the U.S.-Mexico border and, because of their inability to obtain a CBP One appointment, have been denied the right to seek asylum, the filing explains.

Like the plaintiffs, many asylum-seekers have been unable to obtain an appointment via the CBP One app because they lack access to an up-to-date smartphone, reliable Wi-Fi or electricity, the lawsuit relays. Some do not speak English, Spanish or Haitian Creole—the only languages currently used by the app—or are illiterate, lack technological skills or have disabilities that preclude them from working the app, the suit shares.

The case contends that by making navigation of the app a prerequisite to processing at POEs, the defendants have constructed “new technological hurdles for seeking protection” and barred a substantial part of the migrant population from accessing the asylum process.

“For individuals who cannot afford smartphones or access cellular networks, Wi-Fi, or electricity, the consequences are unimaginably high,” the complaint stresses. “Some asylum-seeking families have had to make the choice between buying food or buying data for their phones to access CBP One on a daily basis.”

In addition, the filing says, users report that the app regularly freezes, experiences glitches, requires an update that won’t download or presents repeated error messages in English, a language that many do not understand.

The app, which requires a user to upload live photos of themselves as part of the registration process, has also at times prevented individuals with darker skin tones from successfully making an appointment because it has failed to detect their features and rejected their photos, the suit adds.

What’s more, the U.S. government has arbitrarily capped the number of appointment slots offered at a level “far below” what is needed, meaning that “even those who are able to use the app are repeatedly denied appointments,” the case charges.

“As a result, countless asylum seekers have been forced to wait indefinitely under precarious conditions in Mexico in the hope of obtaining scarce appointments,” the complaint states.

The filing claims that the “turnback” policy has “wreaked havoc” on the lives of innumerable migrants by denying them the right to seek asylum and forcing them to live in perilous border towns where many have suffered violence, extortion, sexual assault, kidnapping and even murder while waiting for appointments.

“Because [the defendants] have blocked legal migration pathways by turning back arriving noncitizens at Class A POEs, they have effectively empowered criminal organizations in Mexico to exploit the waiting migrants,” the lawsuit argues.

As the suit tells it, despite relentless advocacy by the plaintiff organizations and others, the defendants “show no signs” of reversing the unlawful policy.

The lawsuit looks to represent all noncitizens who seek or will seek to present themselves at a Class A port of entry on the U.S.-Mexico border to seek asylum, and were or will be prevented from accessing the asylum process by or on the orders of the defendants based on the CBP One “turnback” policy.

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