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A lawsuit filed Thursday challenges the Trump administration’s policy of requiring asylum-seekers at the southern border to remain in Mexico as they await their hearings.
The suit, filed in San Francisco federal court, says the policy violates immigration and administrative laws, as well as a duty under international human rights law not to return people to dangerous conditions. Press releases are here and here; CBS News, USA Today and BuzzFeed News have coverage.
The Trump administration contends its “migrant protection protocols” are authorized under Section 235 of the Immigration and Nationality Act, which says people entering the country illegally “from a foreign territory contiguous to the U.S.” may be returned “to that territory pending a [removal] proceeding.”
The lawsuit says the contiguous territory provision doesn’t apply to people subject to the expedited-removal statute, and asylum-seekers are within that group. The policy also violates other provisions of the INA that establish a right to apply for asylum and prohibit removal to a country where an asylum-seeker would be subject to persecution, the suit says.
The suit also claims the policy violates the Administrative Procedure Act because it failed to comply with notice and comment requirements, and it is arbitrary and capricious.
One of the plaintiffs, “Bianca Doe,” is a lesbian who was raped because of her sexual orientation, the suit says. A Honduran judge gave custody of Bianca’s son to the rapist after citing her sexual orientation as evidence that she is an unfit parent, according to the suit. When her partner’s father learned of their relationship, he threatened to kill them both.
Another plaintiff, “Ian Doe,” is a former Honduran police officer who worked undercover to fight drug trafficking. When his identity was revealed, drug traffickers mistook his brother for Ian and killed him, the suit says. In Mexico, Ian Doe had to pay a bribe to avoid being arrested.
The suit says President Donald Trump has himself acknowledged that Mexico is not a safe place for migrants. On. Jan. 31, he tweeted that murder cases increased 33 percent in the country from 2017 to 2018. “Worse even than Afghanistan,” he tweeted.
“Asylum-seekers in Mexico face a heightened risk of kidnapping, disappearance, trafficking, sexual assault and murder, among other harms,” the suit says. “Lesbian, gay, bisexual and transgender persons, as well as people of indigenous heritage, are particularly at risk.”
The suit also says the plaintiffs can’t meaningfully access the asylum process in Mexico.
The suit was filed on behalf of 11 asylum-seekers who were forced to wait in Mexico, as well as several immigrant-rights organizations. One of the organizational plaintiffs is the Innovation Law Lab, which advances the legal rights of immigrants and represents asylum-seekers through technology-driven models. Its leader is an ABA Journal Legal Rebel.
Representing the plaintiffs are the Southern Poverty Law Center, the American Civil Liberties Union and the Center for Gender & Refugee Studies.
The suit is Innovation Law Lab v. Nielsen.