Judge certifies class action for asylum seekers turned back

Since President Trump took office in 2016, it has become much more complex for some immigrants to apply for asylum in the U.S. This is because Customs and Border Protection (CBP) began “metering” the number of people it would allow into ports of entry, especially along the southern border with Mexico.

The agency simply said that the ports of entry were “at capacity” and could not accept any more asylum seekers. In some cases, the agency told asylum seekers to wait in Mexico until “their turn.”

That policy, which became official in 2018, may have violated the Immigration and Naturalization Act (INA), the Alien Tort Statute, the Administrative Procedures Act and the due process clause of the Fifth Amendment. If it did, the policy was illegal, and the asylum seekers deserve to be heard.

A federal judge in San Diego has now certified a class action against CBP and the Department of Homeland Security. She found that the asylum seekers’ claims were all based on the common factor of this CBP metering policy and so would be appropriate to hear as a class action.

The government had asked for class certification to be denied. Or, if the court would not deny class certification, it argued that there should be two classes: one for those “turned back” at the border and those “metered” and told to wait. Mainly, it argued that the asylum seekers’ claims were not similar enough for them to be appropriate as a class action.

The judge ruled against both of the government’s arguments. A court hearing the class action would not have to determine the credibility of each asylum seekers’ claims, which admittedly are different from one another. Instead, it merely has to determine whether the metering or turning back violated American law by keeping the asylum seekers out of the asylum system altogether.

Tens of thousands of asylum seekers were denied their chance to apply for help by being turned away from American ports of entry.

People have a right to apply for asylum in the United States if they claim they are eligible. They need only present themselves at a port of entry within a year of arrival in the U.S. and ask for asylum. At that point, a hearing is supposed to be scheduled to determine if the asylum seeker’s claim is credible.

To be eligible for asylum, a person has to have a credible belief that they have suffered or will suffer persecution due to: