Judge Rules Turnback Policy Illegal; Government Must End Practice

August 10, 2022, San Diego, CA 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.

Al Otro Lado provides holistic legal and humanitarian support to refugees, deportees, and other migrants in the US and Tijuana through a multidisciplinary, client-centered, harm reduction-based practice.

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. In January 2022, the Council and New American Economy merged to combine a broad suite of advocacy tools to better expand and protect the rights of immigrants, more fully ensure immigrants’ ability to succeed economically, and help make the communities they settle in more welcoming. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.

The Center for Gender & Refugee Studies defends the human rights of courageous refugees seeking asylum in the United States. With strategic focus and unparalleled legal expertise, CGRS champions the most challenging cases, fights for due process, and promotes policies that deliver safety and justice for refugees.

The Southern Poverty Law Center is a catalyst for racial justice in the South and beyond, working in partnership with communities to dismantle white supremacy, strengthen intersectional movements, and advance the human rights of all people.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org.


Last modified 

August 10, 2022