Also, Members of Congress, Scholars, NGOs, State Attorneys General File Six Amicus Briefs in Support of Ongoing Lawsuit

SAN DIEGO – The Southern Poverty Law Center (SPLC), the Center for Constitutional Rights (CCR), and the American Immigration Council filed a motion late last week seeking information regarding possible U.S. government harassment and retaliation against the leadership of the immigrants’ rights organization Al Otro Lado (AOL). 

Just days later, AOL Director of Litigation and Policy Erika Pinheiro was detained at the U.S.-Mexico border despite having a valid travel visa, due to an “alert” placed on her passport, presumably by the U.S. government. Attorneys filed new documents with the court yesterday. 

The motion for expedited discovery is part of an ongoing lawsuit, Al Otro Lado v. Nielsen, a challenge to U.S. Customs and Border Protection’s (CBP’s) policy and practice of turning back asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

Earlier, over the course of just one week, both the Legal Director and the Litigation and Policy Director of AOL were deported from Mexico, despite having traveled there countless times before without incident. Mexican officials cited a passport alert placed on them by a “foreign government,” which AOL understandably believes is the United States. In addition, the Director of AOL’s Border Rights Project had her expedited border crossing clearance (SENTRI pass) revoked by CBP without explanation. 

The motion for expedited discovery seeks to determine whether the travel restrictions placed on the AOL directors, which impeded their access to their clients – the thousands of stranded migrants in need of humanitarian and legal assistance – was in retaliation for the organization’s participation in the ongoing lawsuit against the federal government and its advocacy on behalf of asylum seekers.

Last week’s filing describes the humiliating treatment the AOL directors had experienced over the past month. One was detained with her seven-year-old daughter in a cell with no food or water for more than eight hours; another was denied entry to Mexico where her young child and partner were awaiting her return. These incidents and others were reported by several news outlets, including the Los Angeles Times (2/1/19and 2/11/19). 

Al Otro Lado is also a plaintiff in separate federal lawsuits challenging the Trump administration’s asylum ban and the recently implemented “Remain in Mexico” policy. They have been highly vocal critics of CBP’s inhumane and unlawful practices toward asylum seekers on the U.S.-Mexican border. A crucial part of AOL’s work – including work on these lawsuits against the U.S. government – requires their directors to travel into Mexico to serve migrant communities on the Mexican side of the border.  

“Now, more than ever, the protection of human rights at the U.S.-Mexico border is a critical mission as the U.S. government seeks to obliterate the right to seek asylum, and each day brings new reports of the multitude of ways that U.S. Customs and Border Protection officers violate the rights of asylum seekers at U.S. ports of entry and of those in their custody,” stated Nicole Ramos, Director of Al Otro Lado’s Border Rights Project. “Unfortunately, this culture of impunity leaves human rights defenders like Al Otro Lado vulnerable to intimidation and threats by a confluence of forces, including state actors, anti-immigrant nationalists, and organized crime, putting both our work and our lives at great risk.”

"We demand answers as to why these individuals have been targeted, intimidated, detained and removed,” said Melissa Crow, senior supervising attorney for the SPLC’s Immigrant Justice Project. “It would be a serious and dangerous escalation in this administration’s war on immigrants if the U.S. government is engaged in retaliating against its own citizens for their advocacy work and participation in this lawsuit. If that is the case, it must be exposed.” 

Said Baher Azmy, Legal Director of the Center for Constitutional Rights, “AOL's leadership have been consistently – and correctly – critical of U.S. and Mexican government practices toward vulnerable individuals seeking asylum at the U.S.-Mexican border. If it turns out that the U.S. government is, in fact, retaliating against AOL for its human rights advocacy, this lawyer-separation policy would represent an egregious abuse of government power.” 

Amicus briefs filed Thursday in underlying litigation 

Highlighting the critical importance of this case, a broad spectrum of stakeholders – including 77 Members of Congress, 19 State Attorneys General, immigration and refugee law scholars, and immigrant advocacy organizations – filed six “friend of the court” briefs last Thursday in opposition to the government’s motion to dismiss the ongoing lawsuit. 

The six amicus briefs filed in support of the plaintiffs’ position in the underlying litigation lay out the factual and legal weaknesses in the arguments made by the administration in its second attempt to dismiss the lawsuit; the first attempt was unsuccessful. The briefs include: 

• Members of Congress arguing that the congressional intent behind the Immigration and Nationality Act was to facilitate processing of asylum seekers at the border and that DHS’s practice of deterring asylum seekers by limiting access to ports of entry and the asylum process is unlawful. 

• Non-governmental organizations arguing that the administration’s “lack of capacity” justification for denying individuals access to the asylum process is factually false, that migration is at historically low levels, and that under the Obama administration CBP demonstrated a significantly greater capacity to process asylum seekers at ports of entry. The NGOs argue CBP’s current policy is driven by hostility to the asylum process and cruel animosity toward asylum seekers. 

• Amnesty International arguing that U.S. legal obligations under domestic and international law require the prompt processing of asylum seekers, and that CBP’s policy is a direct violation of these obligations. 

• Immigration and refugee law scholars arguing that migrants who have reached the U.S. border have clear rights under federal statutes, the Constitution, and international law to access the U.S. asylum process, whether they have stepped across the border or not. 

• Attorneys General of 19 States and the District of Columbia, who together welcome more than 73 percent of asylees entering the United States, arguing that the administration’s policy of turning back asylum seekers is inflicting severe trauma on them and will increase their need for state-funded mental and physical health services when they do reach the United States. 

• Organizations that advocate for immigrant children and youth explaining that the harms faced by juveniles denied access to the asylum process are particularly dangerous.   

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