Michelle is a Nicaraguan national with a one-month-old baby and an abusive partner who works for a Tijuana drug cartel. She’s spent the last month hiding from her partner while simultaneously trying to seek asylum in the United States.
Before she fled, her partner broke Michelle’s phone. And not having a phone shuts her out from the U.S. asylum system, according to a class action lawsuit against the Biden administration.
The policy in question requires asylum seekers to schedule an appointment through the CBP One mobile app before entering the country. Those without appointments, like Michelle, are getting turned away.
“The central focus of this lawsuit is that use of the CBP One app cannot be the exclusive way to seek asylum at a port of entry in the United States,” said Melissa Crow, director of litigation at the Center for Gender and Refugee Studies, which is the organization that filed the lawsuit in a federal court in Northern California.
Al Otro Lado and Haitian Bridge Alliance, two nonprofits who work with asylum seekers in Tijuana, are also joining the lawsuit against the Biden administration.
The migrants are challenging the “border-wide policy and widespread practice of turning back arriving noncitizens without CBP One appointments,” and thereby denying them access to the asylum process, according to the complaint.
Several obstacles prevent migrants from securing appointments through the application, Crow said.
Many lack up-to-date smartphones, or access to wi-fi, a cellular data plan, or reliable power source. Others don’t understand the limited number of languages used in the app, are illiterate, or lack the technical know-how to use the application.
“As a result, countless asylum seekers have been forced to wait indefinitely under precarious conditions in Mexico in the hope of obtaining scarce appointments,” according to the complaint.
For Michelle, not securing a CBP One appointment means having to live in fear that her ex-partner will find her and try to kill her, as he previously threatened to do, according to the complaint.
Customs and Border Protection (CBP) agents at the San Ysidro pedestrian crossing have turned Michelle and her newborn away because she didn’t have an appointment, Crow said.
There are exceptions to the CBP One requirement under the Biden administration’s policy. At least on paper.
The policy allows people to present themselves at a border crossing and explain why they can't use the app. Or explain extenuating circumstances like an imminent threat to their safety that prevents them from waiting indefinitely to secure an appointment, Crow said.
However, people like Michelle are being turned away before they can reach the border crossing.
“What is happening at ports across the southern border flatly contradicts that guidance,” Crow said.
The CBP One mobile app was controversial from the start. Critics call it the Ticketmaster of asylum because the app gave appointments on a first-come, first-serve basis, instead of to the most vulnerable asylum seekers.
Users reported technical glitches and accessibility issues. Migrants with dark skin tones were unable to take photos required to create an account.
CBP has made changes to the app in response to some of those criticisms. The agency expanded the number of daily appointments and set some aside to users who have been registered on the app the longest.
The Biden administration framed CBP One as a way to orderly process asylum seekers instead of having them congregate along the southern border. Use of the app grew after the asylum process was expanded when pandemic-era restrictions expired.
This federal lawsuit comes just a few days after the Biden administration lost a separate lawsuit over its immigration policies.
A federal judge in Oakland blocked rules that made it harder for migrants to seek asylum if they crossed the border illegally and passed through Mexico or another country without first seeking humanitarian protections there.
