(Tribune News Service) — Officials at the San Ysidro Port of Entry are refusing to accept asylum seekers who don't have appointments obtained through a smartphone app even though new government rules indicate they should be taken in and screened.

The Union-Tribune witnessed U.S. officials turning away asylum seekers at the PedEast border crossing on Thursday after attorneys had reported similar incidents earlier in the week.

That included a family from the Mexican state of Michoacán who walked up to the U.S.-Mexico border line on Thursday afternoon and told U.S. border officials standing at the gate that they were seeking asylum.

The officials asked them to step aside and then told them they couldn't request protection there.

"You have to use CBP One," an official told them in Spanish, referring to a smartphone application that Customs and Border Protection has used since January to schedule appointments with asylum seekers to come to the port of entry.

The official's instructions contradict what a high-level official from the Department of Homeland Security said earlier in the week are the new protocols with the recent end of Title 42 — which blocked asylum seekers from entering ports of entry during the pandemic.

"We are not turning individuals away at our ports of entry," said Blas Nuñez-Neto, assistant secretary for border and immigration policy, when asked by the Union-Tribune about asylum seekers being turned back during a press call on Wednesday.

He said people who requested asylum by approaching ports of entry without appointments would be subject to the new, restrictive asylum rule that limits eligibility if they crossed through another country between their country and the United States. That rule could make their screenings for protection more difficult to pass, but it does not take away their right to be screened.

Nuñez-Neto said that CBP is prioritizing processing of people who use the app, which could mean that asylum seekers have to wait long periods of time in line at the port if they don't have appointments.

But that does not appear to be what's happening in San Diego. CBP officers at the San Ysidro Port of Entry turned away the family from Michoacán and told them the only method for requesting protection is to use the smartphone app.

None of the asylum seekers in this article are being fully identified because of concerns that they are still in danger.

CBP did not respond to a request for comment on why they had turned these families away at the port of entry.

A federal judge in San Diego ruled in 2021 that, in the absence of Title 42, it is illegal for CBP to turn away asylum seekers at ports of entry. Now that the pandemic-era border policy is no longer in effect, it is not clear under what authority they are doing so.

A missing safety valve

Though the new rules will likely mean that most asylum seekers who cross without appointments are denied asylum in the early screening stages, they do allow for people to request exemptions based on certain kinds of extenuating circumstances.

If CBP officers refuse to process migrants who approach the port of entry, it is not clear how those especially vulnerable cases might be identified in the first place.

The new rule says that anyone who crosses a third country between leaving their country and getting to the United States will be presumed ineligible for asylum unless they first apply for and are denied asylum in that third country. People who use the smartphone app CBP One are exempted from this rule.

Mexicans who are seeking asylum, such as the family from Michoacán, notably do not have to cross a third country in order to reach the United States, so the rule doesn't apply to them.

"Mexicans are not subject to the asylum ban," said Priscilla Orta, supervising attorney with Project Corazon at Lawyers for Good Government, using advocates' term for the new rule. "They have no reason to have an appointment."

The rule also says asylum seekers can come to ports of entry without appointments if they can't use the app because of language barriers, illiteracy, significant technical failure or because of "exceptionally compelling circumstances," the Department of Homeland Security has said.

But, Orta said, it's not clear how an asylum seeker would prove such circumstances. And the consequences if they are found not to have exceptionally compelling circumstances could be dire if they are not from Mexico.

Orta said under Title 42, she had a "safety valve" — in extreme cases of danger, she could contact CBP directly and ask for the client to be scheduled for processing. Now, she is representing clients who she says are being raped nightly while they wait for appointments in the CBP One app.

"The safety valve is gone," Orta said. "Nothing is more devastating than knowing my clients wait for Friday and then Monday until this administration decides they are worth protecting."

Practices along the border appear to vary under the new rule.

Orta said that at the two ports of entry where she works in Texas — Brownsville and Hidalgo — she hasn't personally witnessed turn-backs of asylum seekers. But a delegation of human rights observers organized by Haitian Bridge Alliance published a report Thursday documenting cases of asylum seekers turned away there after the end of Title 42.

Chelsea Sachau, managing attorney of the Border Action Team with Florence Immigrant & Refugee Rights Project in Arizona, said at the Nogales Port of Entry, there is a line of about 200 asylum seekers, mostly families, who have been waiting for days to be processed. She said those waiting told her roughly 10 to 25 people are being processed over night each night from the line.

But at the San Ysidro Port of Entry, there isn't even a line. CBP officers tell asylum seekers the app is the only option.

There doesn't seem to be a way for asylum seekers to make a claim of exceptional circumstances or for Mexicans to safely exit the country they are trying to flee.

Attorneys have reported multiple occasions since the end of Title 42 when they and the asylum seekers they were representing were turned away by San Diego CBP. That sometimes included Mexican police pressuring them to leave the port area.

No asylum here

For Mexicans being told to wait for appointments in the app, the stakes can be especially high.

In the case of the family from Michoacán, where cartel violence has caused thousands to migrate, the family had been targeted, they said. They'd had to flee where they'd been staying in Tijuana as well, they said, which sent them to the border.

The father, mother, their five children, the father's sister and her two children — 10 in total — tried first to request asylum at the western pedestrian crossing, known as PedWest.

In El Chaparral plaza, several people pointed them instead to the entrance of a parking lot in front of the port where Mexican immigration officials gather asylum seekers with appointments and take them to CBP.

When the family approached the guard house at the parking lot gate, an official told them they needed to download CBP One, that it was the only way to request asylum.

Hoping to speak directly to U.S. officials, the family again approached the entrance to PedWest. A Mexican immigration official stopped them before they even reached the ramp to the crossing and told them they couldn't enter.

Mexico's immigration agency did not respond to a request for comment.

The family told the official they wanted to speak with officers from the United States. He told them they would have to go to the other pedestrian entrance at PedEast to do that.

They followed his instructions, pausing to ask directions of a member of the Mexican military and again of taxi drivers as they got close to the entrance.

"There is no asylum here," one taxi driver told them in Spanish. "Don't waste your time."

When they finally made it to the border line, the conversation with U.S. officials was short. They would not be allowed to request protection there either. They had to wait for an appointment through the app.

Soon after the family reached the border line, two other families followed — a woman and her children from Guerrero, a state in Mexico next to Michoacán that is also experiencing high levels of cartel violence, and a woman and her child from El Salvador, where political repression and gang violence have both caused people to flee.

The woman from Guerrero was adamant about wanting to request protection at a port of entry rather than climbing over the border wall. She didn't want to risk her children's lives, she said.

"It's not fair. We're doing things right," the woman said in Spanish. "I never thought I'd be in this situation, but things change. What I'm living is not a lie. I have proof."

She showed the Union-Tribune photos of her husband's beaten body before he was killed.

"I don't want that life for my children," she said.

After the family from Michoacán walked away, she and the woman from El Salvador approached the U.S. officials and were also quickly sent back.

A lottery for life

The families will have to try their luck with the CBP One app, where more than 62,000 users are already vying for appointments, according to CBP.

As Title 42 ended, CBP One went through a major update, converting it from something like Ticketmaster, where people tap furiously in an attempt to get slots every morning, to something more like a lottery, where appointments are doled out daily based on random chance.

Every day, some asylum seekers receive appointments through notifications in the app and have 23 hours to accept the dates given.

According to Nuñez-Neto, the DHS official, the algorithm that selects who will be given appointments each day weighs how long the asylum seekers have had accounts in the app. But the selection is still based on chance, he emphasized.

"It is a random drawing, and that is intended to be equitable," Nuñez-Neto said.

Since it began offering appointments to asylum seekers, the CBP One app has been criticized by migrants, attorneys and human rights observers for its frequent errors and its exacerbation of inequities in access to asylum screenings.

"People who are terrified to return to their home countries who are seeking asylum, they want to do this the right way so badly that they wait for an app that does not work," Orta said. "It's a lottery for their life."

Nuñez-Neto said the recent update was meant to address many of these concerns.

At least some issues that have long plagued the app are still affecting migrants, as was apparent in the case of the family from Michoacán.

Many asylum seekers lose their phones or are robbed of their phones on their journeys to the border. Others never had money for smartphones to begin with.

After being told that he had to use a smartphone app, the father of the family from Michoacán pulled a cellphone from his pocket to show the Union-Tribune. It was an outdated Nokia, a style that might have been popular in the early 2000s. He wouldn't be able to download any smartphone app on that device.

The father's sister is the only one with a smartphone, meaning that the families can't break into two groups to try to get an appointment. They will have to find one for all 10 — which can be especially difficult.

The family found temporary refuge with a friend in the city, but because of their size, they can't stay long there. They don't know where they will go next.

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