Challenging Draconian Border Policies

CGRS attorneys with co-counsel and plaintiffs in Innovation Law Lab v. Wolf and East Bay Sanctuary Covenant v. Trump following oral argument at the Ninth Circuit

(March 2020) - The Trump Administration has waged an all-out assault on the right to seek asylum, taking drastic steps to block asylum seekers from even applying for protection in the United States. Through policies like the Migrant Protection Protocols (MPP, or “Remain in Mexico”), the third country transit ban, and asylum cooperative agreements (ACAs), the government has almost completely shut down access to protection at the U.S. border. CGRS is stepping up to challenge these cruel and illegal policies in court.

Fighting to End the Government’s Forced Return Policy: Innovation Law Lab v. Wolf

In January 2019 the Trump Administration launched MPP and began forcibly returning asylum seekers to await their U.S. immigration court dates in perilous conditions in Mexico. Within weeks, CGRS teamed up with the American Civil Liberties Union (ACLU) and Southern Poverty Law Center (SPLC) to file a federal lawsuit, Innovation Law Lab v. Wolf, against the policy.

We won a preliminary injunction in April 2019, which would have temporarily halted MPP. But that injunction was stayed by the Ninth Circuit pending resolution of the Administration’s appeal, allowing the policy to remain in effect. In the months that followed, over 60,000 asylum seekers were left stranded in Mexico, where they have faced grave human rights abuses. Human Rights First has documented over 1,000 public reports of murder, torture, rape, kidnapping, and other violent attacks against asylum seekers and migrants returned to Mexico under MPP, a figure that likely represents only the tip of the iceberg.

On February 28, 2020, the Ninth Circuit restored the preliminary injunction we had won against the policy, clearly and unequivocally stating that MPP is unlawful and likely to violate our nation’s international refugee commitments. Within hours the government secured another stay, allowing the policy to continue nationwide through March 11 as the Administration sought Supreme Court review. On the 11th the Supreme Court granted the government’s request for yet another stay, allowing the policy to remain in effect pending the government’s filing of a petition for a writ of certiorari. As the Supreme Court considers weighing in, the policy will unfortunately continue to endanger thousands of asylum seekers. CGRS and our co-counsel continue to fight for a permanent end to MPP. We remain hopeful that the court will ultimately reinstate the injunction against this dangerous and illegal policy.

Suing to End Unsafe Third Country Agreements: U.T. v. Barr

In January 2020 CGRS joined the ACLU, National Immigrant Justice Center, and Human Rights First in challenging the Trump Administration’s so-called Asylum “Cooperative” Agreements (ACAs) with El Salvador, Guatemala, and Honduras, in U.T. v. Barr. Under these agreements, the United States is seeking to “transfer” certain asylum seekers to these countries – even if they have never stepped foot there before – and denying them the opportunity to even apply for protection in the United States.

U.S. law allows such transfers pursuant to a “safe third country” agreement if asylum seekers will actually be safe and have access to full and fair asylum procedures in the country to which we send them. But El Salvador, Guatemala, and Honduras utterly fail to meet these standards. All three countries lack the capacity to handle more than a minuscule number of asylum claims and are plagued with rampant gender- and gang-related violence that has forced thousands of their own citizens to seek asylum in the United States.

Our plaintiffs in U.T. v. Barr include some of the first asylum seekers subjected to the ACA with Guatemala. They include H.R., a mother who fled El Salvador after gang members killed two of her siblings and attempted to force her teenage daughter into a sexual relationship. When H.R. and her children finally reached the U.S. border and asked for protection, an asylum officer told them they were going to be transferred to Guatemala under the new ACA. H.R.’s family had been extorted by Guatemalan police officers when they passed through the country en route to the U.S. border. She begged the officer to let them stay in the United States, where she knew they would be safe – to no avail. After the U.S. forcibly returned H.R. to Guatemala, she was given only 72 hours to decide whether she wanted to apply for asylum there. H.R. felt just as unsafe as she had in El Salvador, and she had no family or resources in Guatemala. She knew she had no choice to return home. Back in El Salvador, H.R. and her family continue to live in fear of the gangs whose threats forced them to flee in the first place.

To date, over 800 asylum seekers – mostly women and children, like H.R.’s family – have been sent to Guatemala. Just 16 have opted to apply for asylum there, and most remain unaccounted for. The Trump Administration is now finalizing plans to begin sending asylum seekers to El Salvador, a country with one of the highest homicide rates in the world. While U.T. remains pending at the D.C. District Court, CGRS and our co-counsel continue to call on the Trump Administration to put an end to these unspeakably cruel and illegal policies.

Challenging the Third Country Transit Ban: East Bay Sanctuary Covenant v. Barr

Last summer the Trump Administration published its third country transit rule, also known as the transit ban, or asylum ban 2.0. This policy bars asylum for any person who has passed through a third country en route to the U.S. southern border, with extremely limited exceptions – effectively slamming the door on all non-Mexican asylum seekers. The transit ban has been challenged by the ACLU, SPLC, and Center for Constitutional Rights in East Bay Sanctuary Covenant v. Barr. Although a district court granted a preliminary injunction against the policy in East Bay in July 2019, the Supreme Court granted the government’s subsequent request for a stay and the transit ban remains in effect nationwide.

CGRS has filed amicus (“friend of the court”) briefs before the district court, the Ninth Circuit, and the Supreme Court in support of the East Bay challenge. We were joined in our most recent brief, filed in the Ninth Circuit last fall, by over 50 national and regional organizations, as well as law school clinics that advocate for asylum seekers. Together we are calling on the Ninth Circuit to uphold the district court’s preliminary ruling in East Bay and block this inhumane and patently unlawful policy. The court heard oral argument in December 2019, and the case remains pending.