Los Angeles Times - 01.08.2019

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SAN DIEGO — A lawsuit
over the federal govern-
ment’s program limiting the
number of asylum seekers
who can ask for help at ports
of entry will be allowed to go
forward, a federal judge in
San Diego has ruled.
U.S. District Judge Cyn-
thia Bashant on Monday
largely dismissed the gov-
ernment’s objections to alle-
gations brought by legal
nonprofit Al Otro Lado and
a list of anonymous asylum
seekers who hope to make
the case a class action. The
plaintiffs in the case allege
that the program, called
“metering” by the Trump
administration, goes
against the country’s obliga-
tions under U.S. and inter-
national law.
“We have seen the tragic
human consequences of the
turnback policy on thou-
sands of vulnerable people
who, after making a long,
harrowing journey to escape
their persecutors, face bully-
ing and rejection by Cus-
toms and Border Protection
officers who simply tell them
to turn around and wait in
very dangerous conditions,”
said Erika Pinheiro, litiga-
tion and policy director of Al
Otro Lado, using the law-
suit’s name for the metering
program.
While meteringas a prac-
tice began before Donald
Trump became president —
the allegations in the case go
back as far as 2016 — the pro-
gram has been widely used
by his administration all
along the U.S.-Mexico bor-
der.
The growing backlog of
asylum seekers waiting to
come in has put many in dif-
ficult, and sometimes dan-
gerous, situations along the
border.
In Tijuana — in addition
to deportations and the “re-
main in Mexico” policy that
returns Spanish-speaking
asylum seekers from other

countries to Mexico for the

duration of their court cases

—the long wait times for

those hoping to ask for asy-

lum put extra pressure on

the city’s capacity to house

migrants.

On several consecutive

days at the beginning of July,

U.S. officials didn’t take any

people from the asylum line,

causing the queue to grow

to its largest yet, at about

9,150 people, according

to data from Al Otro Lado,

which sends volunteers daily

to monitor the line’s length.

Cameroonians and Eri-

treans waiting their turns

for processing protested in

response. Many said they

had been forced to sleep

on the street under bridges

because shelters are so

full.

When Nicole Ramos, an

attorney with Al Otro Lado,

first joined with a group of

immigration and civil rights-

related nonprofits to file a

complaintwith the Depart-

ment of Homeland Security

over the issue of asylum

seekers being turned away

at ports of entry at the be-

ginning of 2017, officials with

Customs and Border Pro-

tection dismissed those alle-

gations, saying that the U.S.

was following the law.

That complaint evolved

into the current lawsuit, filed

in July 2017.

The agency has often

cited capacity issues as the

reason it tells migrants hop-

ing to request asylum to wait

in a line in Mexico that has

turned into its own de facto

systemsubject to the au-

thority of immigration offi-

cials from that country. The

wait has grown to several

months.

The government has ac-

knowledged since that it has

a policy called metering, and

Gisela Westwater, a lawyer

for the Department of Jus-

tice, offered Bashant a copy

of a memo relating to the

program at a hearing in May.

Westwater argued that

the plaintiffs couldn’t force

the agency to expend re-

sources it doesn’t have to

process more people. That

decisionis made by Con-

gress’ budget, Westwater ar-

gued.

“CBP is not denying that

an individual may ever en-

ter,” Westwater said. “It’s di-

recting them to wait until

CBP can process them

safely and securely.”

The lawsuit contends

that the capacity issues are a

cover for the real reason that

the Trump administration

doesn’t take in more asylum

seekers — deterrence. That

motive would make the pro-

gram illegal, the lawsuit ar-

gues.

Bashant sided with the

plaintiffs, saying that the al-

legations they had made, if

true, could very well be vio-

lating the law.

“Turning back prospec-

tive asylum applicants pur-

suant to an alleged executive

policy that seeks to deter

asylum seekers through

false assertions of lack of ca-

pacity is plausibly inconsis-

tent with and violative of the

scheme Congress enacted,”

Bashant wrote in her order.

As part of her reasoning,

she pointed to the fact that

Congress gave the president

power to put a limit on the

number of refugees that the

United States accepts each

year but not on the number

of asylum seekers.

The government had also

argued that some of the asy-

lum seekers in the case could

not make claims because

they had not yet reached

U.S. soil.

“If someone is standing

at the turnstile and says, ‘I’m

seeking asylum,’ are you say-

ing the law doesn’t apply to

them?” the judge asked

Westwater at the May hear-

ing.

“Yes, your honor,” West-

water responded.

Lawyers for the plaintiffs

argued that their clients

hadn’t been able to cross

onto U.S. soil to make their

requests because CBP

wouldn’t let them. At the

San Ysidro port of entry,

there is a turnstile at the bor-

der where security guards

and CBP officers check that

travelers have the appropri-

ate documents before allow-

ing them to cross. Anyone

without those documents is

sent away before setting foot

in the United States.

“The reason people ar-

en’t stepping a toe into U.S.

territory is the government

is preventing them from do-

ing so,” said Melissa Crow,

an attorney with the South-

ern Poverty Law Center’s

Immigrant Justice Project,

on Tuesday.

Bashant ultimately re-

jected this objection to the

case as well. The judge spent

paragraphs analyzing Con-

gress’ grammar in her 84-

page order, concluding that

the definition of “arriving

alien,” as migrants request-

ing asylum at ports of entry

are known in legal terms, in-

cludes those who are in the

process of arriving but

haven’t yet crossed the bor-

der.

The case continues to

proceed in the discovery

phase and will likely see fil-

ings for class certification in

the fall.

Morrissey writes for the San

Diego Union-Tribune.

Judge rules asylum suit can continue

The lawsuit contends

the government is

illegally turning away

migrants at the border.

By Kate Morrissey

AMIGRANT GIRLwaits as her family determines where they are in line to apply for asylum. In July, the line

swelled to more than 9,000 people — the longest yet — according to nonprofit Al Otro Lado, which monitors it.

Gina FerazziLos Angeles Times

‘If someone is

standing at the

turnstile and says,

“I’m seeking

asylum,” are you

saying the law

doesn’t apply to

them?’

—U.S.

District Judge

Cynthia Bashant,

questioning government lawyer