Judge Rules Turnback Policy Illegal; Government Must End Practice

On Friday, August 5, a district court judge ruled in Al Otro Lado v. Mayorkas that the government’s turnback policy — its practice of systematically rejecting asylum seekers at ports of entry along the U.S.-Mexico border — is illegal. The court concluded that under U.S. law, border agents are obligated to inspect and process individuals arriving at ports of entry and provide them with a fair and meaningful opportunity to seek asylum. In the wake of this ruling, Al Otro Lado, the Center for Gender & Refugee Studies, the American Immigration Council, the Center for Constitutional Rights, and the Southern Poverty Law Center call upon the Biden administration to heed the court’s ruling, end the turnback policy, and work toward restoring a fair, humane, and orderly asylum process at the southern border.

“The court's decision rightly recognizes that the government's long-standing practice of turning back asylum seekers at ports of entry is illegal,” the Al Otro Lado litigation team said today. “We hope the ruling will push the federal government to adopt policies at ports that place it on the right side of history, welcoming those seeking refuge in accordance with the procedures required by law. We are disappointed, however, by the court’s conclusion that the Supreme Court ruling in Garland v. Aleman Gonzalez limits its ability to redress the profound suffering that people seeking asylum will continue to endure. Since its inception, the turnback policy has stranded thousands of vulnerable families, children, and adults in precarious conditions, where they have faced kidnapping, assault, disappearance, and death. The lack of injunctive relief for due process violations resulting from ‘rapacious executive overreach,’ to use the court’s language, is incredibly frustrating.”

Since at least 2016, the U.S. Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) have deprived migrants of the opportunity to seek asylum, using tactics including lies, intimidation, coercion, verbal abuse, physical force, the threat of family separation, and delays to deny access to the asylum process, forcing vulnerable families, children, and adults to spend months in perilous conditions in Mexico.

The Al Otro Lado v. Mayorkas case challenged this policy and practice under the Immigration and Nationality Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment. The case was brought four years ago by Al Otro Lado, a non-profit legal services organization serving indigent asylum seekers and others on both sides of the U.S.-Mexico border, along with 13 individual asylum seekers harmed by the policy. They are represented by the American Immigration Council, the Center for Constitutional Rights, the Center for Gender & Refugee Studies, the Southern Poverty Law Center, and the law firm Mayer Brown LLP.

In a summary judgment decision issued in September 2021, the court found turnbacks unlawful and requested briefing on appropriate remedies. Advocates asked the court to issue an injunction blocking the government from continuing to turn back asylum seekers at ports of entry. In its latest opinion, the court declined to do so, concluding that its hands were tied by the June 2022 Supreme Court ruling in Garland v. Aleman Gonzalez, which the court found to preclude lower courts from enjoining the practices of immigration enforcement agencies, even those such as the turnback policy which “trample upon . . . statutory and constitutional rights.” The court found that it could order injunctive relief in individual cases involving noncitizens in removal proceedings, but could not address the government’s policies on a class-wide basis.

The court’s ruling should push the Biden administration to end turnbacks once and for all. It should also push the administration to redouble its efforts to terminate the deadly Title 42 policy, which continues to prevent people seeking safety at the southern border from accessing the U.S. asylum process.