Violating Non-Refoulement with the CBP One™ App: How Technology Blocks Asylum Access on the U.S. Borders

US-Mexico barrier at Nogales. Source: Sgt. 1st Class Gordon Hyde

By Kudrat D. Kontilis

In 1951, the United States, along with other nations, ratified the Refugee Convention, committing to uphold non-refoulement—the principle within human rights law that forbids states from returning individuals to countries where they risk persecution, torture, or inhumane treatment [1]. Non-refoulement was once regarded as a Jus Cogens principle—binding all states regardless of whether they are parties to the 1951 Convention—designed to offer universal protection for refugees. The UNCHR Advisory Opinion on Extraterritorial Application of Non-Refoulement Obligations further explained that this obligation extends beyond an individual’s home country to any place where they may face danger (although the U.S. notably rejected this opinion) [2]. However, over the years, states have introduced both technological and systemic barriers that undermine this core obligation. A prominent example of this shift is the introduction of the CBP One™ app that allows incoming non-citizens without appropriate documents for admission to the United States through the U.S. southern border and lets them submit information online rather than physically waiting at a physical port of entry (POE), thus presenting barriers to protection and restricting access to the asylum process for arriving refugees [3].[1]

In a 2023 class action complaint, Al Otro Lado, Inc. v. Mayorkas, the plaintiffs alleged that the U.S. Customs and Border Protection (CBP) officers refused to inspect and process asylum seekers once they reached POEs deemed "at capacity," turning them back to Mexico in such cases in a policy that known as “metering” [4]. POEs to the United States, including those on the border with Mexico, are located within the United States; as such, any migrant physically located in a POE has legally reached the U.S. As a result, any removal of said migrants to Mexico should be legally considered non-refoulement. In 2022, a federal judge ruled the CPB’s turnback practice unlawful, affirming that it implemented systemic barriers that increasingly block access to asylum [5]. In the most recent judgment rendered by the Ninth Circuit in Al Otro v. Mayorkas, the Ninth Circuit has held that CBP’s metering policy violates federal immigration law by denying asylum seekers the opportunity to apply for asylum upon arrival at POEs [6].[2] However, the Ninth Circuit maintained that the metering policy did not violate the international norm of non-refoulement because the U.S. continues to maintain that non-refoulement does not extend to asylum seekers waiting outside the U.S. borders, even if these asylum seekers were turned away by U.S. authorities after reaching a POE located on U.S. territory. With the advent of the CBP One™ app in 2023, the turnback policy has become more insidious. The plaintiffs in Al Otro Lado, Inc. v. Mayorkas, a new class action against using CBP One™ app as a tool to turnback asylum seekers arriving at POE’s, alleges that CBP officers now turn away non-citizens arriving without CBP One™ appointment [7].  This de facto CBP One™ turnback policy has allegedly become the government’s latest method of blocking asylum in violation of statutory, constitutional, and international law [8].  

U.S. statutes and regulations do not authorize agencies to impose artificial limits on the number of noncitizens allowed to present at a POE for asylum.[3]  Nor do U.S. laws permit the creation of technological barriers that deprive individuals of their legal right to seek asylum or create unreasonable and hazardous delays. Congress has explicitly mandated "equity in its treatment of all refugees, regardless of how they arrive," upholding its international commitment to the principle of non-refoulement [9].

Access to and use of the CBP One™ app poses challenges to asylum seekers, hindering their ability to navigate the U.S. asylum process. The CBP One™ app for instance, they must have access to a smartphone, be able to read in one of the offered languages (English, Hatian Creole, or Spanish), and navigate the app with stable internet access [10]. Even if they manage to meet these technological demands, noncitizens and incoming refugees are often forced to wait in dangerous border towns in Mexico, hoping the app will allow them to reserve an appointment at a POE. Until they can secure an appointment on the app, which may take months, these refugees are in a transitional waiting that period puts them in grave danger. Being forced to wait in border towns instead of being processed at POEs exposes refugees to violence from both state and non-state actors, thereby potentially violating the non-refoulement principle.

Despite the allegations asserted in the class action complaint, the U.S. government, in its motion to dismiss, denied the existence of a constructive turn-back policy, citing the Circumvention of Legal Pathways rule [11] [12] [13].  The government argued that CBP “inspects and processes all arriving noncitizens,” regardless of whether they have appointments or have used the CBP One™ app [14]. However, this assertion contradicts the experiences of thousands of asylum seekers stranded in Mexico [15]. These asylum seekers are unable to access the system due to the app’s technological barriers and hence may choose to cross the U.S. border without inspection and be subjected to the asylum ban (under the ban, asylum seekers entering the U.S. via unauthorized crossings are barred from applying for asylum) [16].  According to an Amnesty International Report on CBP One, the application’s mandatory use of facial recognition and GPS tracking raises serious concerns about privacy, surveillance, and potential discrimination, further complicating the asylum-seeking process. Along with this an analysis of the CBP One™ application by Amnesty International’s Security Lab found that device information and identifiers are sent to Google’s Firebase service, functionality that is not disclosed to users [17].

International Law and the Erosion of Non-Refoulement

In his 2024 ruling on the motion to dismiss Al Otro Lado Inc. v. Mayorcas, Federal Judge Schopler addressed the complex question of whether non-refoulement is universally understood to protect individuals who present themselves at a country’s border but are not yet within its territorial jurisdiction [18]. In doing so, Schopler made a dispositive finding, stating that the international community has not fully embraced the extra-territorial application of non-refoulement and maintained that non-refoulement does not extend to asylum seekers waiting outside the U.S. borders, even if these asylum seekers were turned away by U.S. authorities after reaching a POE located on U.S. territory [19]. In his reasoning, he quoted that some countries, including Australia and certain EU member states, have implemented policies that challenge the universal application of the principle. However, the rationale that other states’ violations of international norms such as non-refoulement reduce these norms’ binding effect is flawed. Article 33 of the 1951 Refugee Convention makes no territorial distinction, stating only that refugees must not be returned to a country where their life or freedom is at risk [20]. The Convention Against Torture similarly prohibits returning individuals to countries where they may face torture, regardless of whether they have crossed into the state’s territory [21]. The U.S. should apply the logic used in the Convention Against Torture to its treatment of refugees in order to prioritize their safety.

The U.S. is far from the only Western nation to implement policies that flirt with violations of the non-refoulment principle.  Australia, for example, has implemented a program called Operation Sovereign Borders, which turns back unauthorized boats or processes them at offshore islands like Papa New Guinea or Christmas Island, thereby preventing refugees from reaching Australian territory and denying visas to those arriving via such methods [22]. Critics argue that such a policy can be considered constructive refoulement. Similarly, EU nations such as Germany and Slovakia have reintroduced border checks to combat illegal migration under Article 25 of the Schengen Borders Code within the Schengen zone—a region normally characterized by free movement (per the Schengen Border Agreement) [23] [24]. Such policies dispute the notion that non-refoulement applies outside these states’ territorial boundaries [25].

In the landmark case of Hirsi Jamaa v. Italy, the European Court of Human Rights (ECHR) ruled that Italy had violated non-refoulement by intercepting and returning migrants in international waters [26]. The court found that the principle applies even when individuals have not physically entered a country, as a state’s actions—such as interception and refusal—directly impact asylum seekers' rights. This ruling reinforces the idea that states cannot escape their non-refoulement obligations by preventing asylum seekers from physically crossing into their territory, a practice that Australia, several European nations, and now the U.S. have all adopted.

U.S. Stance on Extraterritorial Non-Refoulement
Over the years, the U.S. courts have consistently limited the extraterritorial application of the non-refoulement principle, emphasizing territorial boundaries and physical presence. In Sale v. Haitian Centers Council, Inc. (1993), the Supreme Court ruled that non-refoulement protections under the Refugee Convention, as incorporated into U.S. law via the Refugee Act, do not apply to individuals interdicted on the high seas, restricting protections to refugees not physically within U.S. borders—in this case within the country’s maritime border [27]. Similarly, in Munaf v. Geren (2008), the Court declined to extend protections under the Convention Against Torture (CAT) to detainees transferred to foreign authorities, reinforcing the territorial limits of U.S. obligations [28]. Precedent in Sale and textual ambiguities in U.S. statutes and treaties have cemented a judicial reluctance to affirm broad extraterritorial non-refoulement obligations, often deferring to executive authority on matters of sovereignty and immigration enforcement.

However, emerging scholarship on the principle of non-refoulement and U.S. obligations has raised challenges to U.S. policies that indirectly violate non-refoulement principles. For example,
E.O.H.C v. DHS (2021) addressed how the Migrant Protection Protocols (MPP) constructively refouled asylum seekers by placing them in unsafe conditions in Mexico, allowing challenges under domestic law [29]. The Ninth Circuit’s 2023 ruling on Al Otro v. Mayorkas that CBP’s metering policy violated federal immigration law also set an important precedent, as it applies migrants presenting at POEs without CBP One appointments [30]. While no binding precedent requires the U.S. to ensure safety abroad, the issue remains a subject of ongoing legal and policy debate.

Empirical Data on the Impact of CBP One™ and Counter Arguments

A 2023 report by Human Rights First found that the use of the CBP One™ app has left thousands of refugees stranded in dangerous border towns in Mexico, exposing them to violence, extortion, and exploitation by criminal gangs and corrupt officials [31]. According to CBP operational statistics for August 2024, in August alone CBP processed approximately 44,700 individuals with advanced information submitted through CBP One™ [32]. Between the introduction of the CBP One™ appointment scheduling function in January 2023 and the end of August 2024, approximately 813,000 individuals have successfully scheduled appointments to present at ports of entry using the app.

Proponents of the CBP One™ app argue its necessity based on the assumption that the principle of non-refoulement is activated when the refugees are present inside the territorial jurisdiction of the U.S. and not outside of it, even if they are at a POE as ruled by the Ninth Circuit and Judge Schopler in his most recent order [33]. Supporters of the app claim that the Department of Homeland Security (DHS) needs such technology to avoid creating dangerous overcrowding at ports, which could lead to unsafe conditions for both migrants and border officials [34]. The CBP One™ app allows the system to control and organize the flow of individuals, ensuring that only those who have appointments are processed, preventing chaotic and uncontrolled access at the borders [35].

A 2022 World Bank report highlights that many asylum seekers come from countries with low smartphone penetration. While 85 percent of people in the U.S. own a smartphone, countries in Central and South America have significantly lower rates due to limited broadband infrastructure, high costs, lack of digital skills, and inadequate local-language content. As of the first quarter of 2024, 5G internet penetration in Mexico is 9.1 percent of the country's total mobile lines [36]. According to the 2024 GSMA report, 89 percent of Latin America is covered by 4G networks, but only 37 percent of the population actually uses 4G and 4G penetration is higher in South America (at nearly 77 percent) than in Mexico and Central America (at 37 percent) [37]. For more context, only 5 percent of households in Haiti, 31 percent in Guatemala, and 65 percent in Mexico have fixed internet access [38]. So, these arguments in favor of the use of the CBP One™ App overlook a critical issue: digital exclusion leading to the creation of barriers to seeking asylum [39].

Policy Recommendations: Reaffirming U.S. Commitments to non-refoulement

The U.S. has consistently prioritized domestic border control and deterrence over broader humanitarian obligations outside its territory. Policies narrowing asylum access—such as the compulsory use of the CBP One™ app and unwritten practices like the “turnback policy”—undermine the U.S.’ international commitments under the Refugee Convention and violate the principle of non-refoulement. These technological barriers not only restrict access to the asylum process but also create bureaucratic obstacles that deny many asylum seekers the protection they are entitled to under international law. The following steps can be taken to ensure equity, fair use of technology, and a commitment to upholding non-refoulement by the U.S. while encountering asylum seekers on its borders:

1. Implement Alternative Asylum Processing at Ports of Entry: A practical and humane solution to improve asylum access at U.S. borders is to process refugees at POEs for those who cannot use the CBP One™ app due to lack of technology access, language barriers, or other constraints. The CBP would need to implement this step by stopping its constructive turnback policy that turns away refugees who do not have appointments on the app. These steps would ensure that asylum seekers are not unfairly excluded from protection solely because they cannot navigate a digital system. In terms of feasibility, this approach aligns with practices that have existed at U.S. POEs, where individuals without proper documentation were already processed in person. Thus, CBP already has the infrastructure in place to take this approach.

2. Provide On-Site Technological Support: To ensure that asylum seekers can effectively use the CBP One™ app, setting up Wi-Fi hotspots and providing on-site technological support in shelters near Mexican border towns is a simple and cost-effective solution [40]. This would offer migrants critical assistance in booking appointments and navigating the digital system. Additionally, multilingual support for those who do not speak English, Haitian Creole, or Spanish is essential to addressing language barriers within the app. This recommendation builds on the infrastructure already in place at border shelters, such as food and housing provided by the government and NGOs, making these changes feasible without significant new investments. Similar initiatives have been successfully implemented by NGOs and international agencies in refugee camps worldwide, such as in Greece and Jordan, where Wi-Fi and digital assistance helped refugees file asylum applications. By following this model, the U.S. can ensure fairer access to the asylum process and eliminate technology as a barrier to those seeking protection [41].

3. Independent Oversight of CBP Operations: Establishing an independent oversight body or further strengthening the existing Office of Inspector General (OIG) to monitor how CBP officers enforce border policies, including their use of the CBP One™ app, is a critical step toward ensuring accountability and upholding the U.S.’ non-refoulement obligations. Such a body would track incidents of turnbacks and denials of asylum based on technological barriers, ensuring transparency and fairness in the asylum process. Currently, according to a report by the OIG, there was no planning done for CBP One™ risks before the app was introduced. Opportunities to implement improvements to the app and its user experience certainly exist [42]. The feasibility of this recommendation is supported by existing models, such as the Office of the Inspector General (OIG), which already oversees the Department of Homeland Security (DHS) operations, including border enforcement [43]. Strengthening oversight mechanisms is increasingly called for, as it can help address concerns about potential human rights violations and ensure that the CBP adheres to legal and ethical standards, particularly regarding the treatment of vulnerable asylum seekers.

4. Legislate Limits on Technology in Asylum Processing: After a thorough understanding of the impact and risks of using the CBP One™ App, the next step should be to introduce legislation to limit the role of technology in the asylum process. This law should guarantee that all asylum seekers, whether they have access to technology or not, are granted physical access to ports of entry on the border of the United States and are processed in a timely manner. The feasibility of this recommendation lies in Congress’ ability to codify the proper use of technology in asylum processing, making it a tool that supports, rather than hinders, applicants. A precedent for the use of technology in migration exists in the European Union. For instance, the Asylum, Migration, and Integration Fund (AMIF) supports digital solutions that facilitate better data sharing among EU Member States, helping streamline asylum applications under the Dublin Regulation [44] [45]. However, even though the EU has been able to use technology effectively in automating asylum procedures, its latest pact on Migration and Asylum has raised concerns.
Most notably, the pact promotes extensive use of surveillance technologies, such as facial recognition and biometric data collection, to monitor migrants. This raises significant privacy and data protection concerns: the use of predictive analytics and artificial intelligence to assess "migration risks” can lead to discriminatory profiling, disproportionately targeting migrants based on nationality, ethnicity, or other characteristics [46]. There still exists a reference point for the U.S. to learn from and avoid the mistakes being made by the EU. Concerns about the misuse of digital infrastructure in the U.S. context can be studied and remedied by passing a bill that restricts the over-reliance on digital systems, such as facial recognition. The U.S. government and agencies have an opportunity to learn from their own past mistakes and from those of other nations as they create a more equitable asylum process [48].

Conclusion

U.S. asylum law, including the Refugee Act of 1980, primarily governs individuals physically present at or within U.S. borders. This is unambiguously applicable to migrants waiting or arriving at POEs, given that the POEs are US territory. While the metering policy was deemed unlawful under these statutory requirements, this ruling did not extend non-refoulement obligations beyond U.S. territorial jurisdiction. Courts, such as the Ninth Circuit, have permitted challenges to policies like “constructive refoulement,” which effectively force asylum seekers to remain in dangerous conditions outside the U.S., as seen with the Migrant Protection Protocols and with the advent of the CBP One™ app. However, courts have stopped short of affirming extraterritorial non-refoulement, citing that asylum protections are inherently tied to U.S. territorial jurisdiction. Immigration enforcement is closely linked to national sovereignty, leading courts to defer to the executive branch on foreign policy matters. Expanding non-refoulement obligations beyond borders would require comprehensive legislative reform, as courts generally avoid policy decisions with implications for international relations. Such an expansion would place significant demands on U.S. resources, infrastructure, and coordination with foreign governments.

Nonetheless, whether or not the U.S. affirms that non-refoulement extends beyond its borders, it must ensure that its policies do not exclude vulnerable asylum seekers from accessing their right to seek protection. While the United States does not have extraterritorial non-refoulement obligations in a strictly narrow legal sense, expanding such obligations would mark a significant shift in policy and in U.S.’ the legal interpretation of the principle on non-refoulement. The U.S. has ethical obligations, commitments under international law, and a vested interest in maintaining its international standing as a defender of human rights and global norms. The U.S. must take immediate steps to address the shortcomings of the CBP One™ app and ensure equitable access to asylum to uphold the values the U.S. seeks to represent globally. By implementing specific policy changes—such as expanding asylum access at ports of entry, enhancing oversight, and legislating the ethical use of technology in asylum processes—the U.S. can reaffirm its leadership in protecting human rights and resolving this critical issue. Failure to address these systemic barriers not only undermines the nation’s commitment to protecting refugees but also jeopardizes its international standing. Now is the time to eliminate digital and procedural obstacles, restoring trust in the U.S. asylum system and ensuring it remains a sanctuary for those fleeing persecution.


[1] A port of entry (POE) is a regulated gateway that facilitates the movement of people and goods into and out of the country. POEs can include several border crossings, as well as air and seaports. POE’s on the U.S.-Mexico border are considered U.S. territory. Individuals who physically arrive at these locations are legally deemed to have reached the United States for the purpose of immigration and asylum law.

[2] CBP's Metering Policy refers to a practice by U.S. CBP that limits the number of asylum seekers who can present themselves at ports of entry (POEs) along the U.S.-Mexico border. Under this policy, CBP officers regulate the flow of asylum seekers by “metering” or capping the number of individuals allowed to approach a POE on a given day.

[3] The June 4 Proclamation on securing the Border places limits on the entry of migrants into the United States but technically they can still present themselves at a port of entry. CBP via the CBP One™ app has created a system where only migrants with appointments are processed on POE’s and others are turned back.

About the author

Kudrat D. Kontilis currently serves as the Vice Chair of the San Francisco Immigrant Rights Commission and is the first South Asian in this role. A foreign-trained attorney with an LL.M in International Law from the Fletcher School of Law and Diplomacy at Tufts University, Kudrat has worked extensively on gender based violence asylum claims. She has served as the Co-Chair of Women’s March San Francisco and is the author of ‘Laiza’, her debut novel on the human trafficking of women from Nepal to India after the Nepal Earthquake of 2015.

Endnotes

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  2. UNHCR. Note on Non-Refoulement (Submitted by the High Commissioner), EC/SCP/2, August 23, 1977. Accessed October 2024. https://www.unhcr.org/us/publications/note-non-refoulement-submitted-high-commissioner.

  3. U.S. Customs and Border Protection. CBP One™ Mobile Application. Accessed December 8, 2024. https://www.cbp.gov/about/mobile-apps-directory/cbpone.

  4. Al Otro Lado, Inc. v. Mayorkas. No. 17-cv-02366-BAS-KSC, 2021 WL 3931890, at *1 (S.D. Cal. Sept. 2, 2021).

  5. Al Otro Lado, Inc. v. Mayorkas. No. 17-cv-02366-BAS-KSC, 2022 WL 3970755, at *1 (S.D. Cal. Aug. 23, 2022).

  6. Al Otro Lado, Inc. v. Mayorkas, No. 22-55988, slip op. (9th Cir. Oct. 23, 2024), https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/23/22-55988.pdf.

  7. Al Otro Lado, Inc. v. Mayorkas. No. 3:23-cv-01367-AGS-BLM, Document 1, at *1 (S.D. Cal. July 27, 2023).

  8. Human Rights Watch. We Couldn’t Wait. May 1, 2024. Accessed October 2024. https://www.hrw.org/report/2024/05/01/we-couldnt-wait/digital-metering-us-mexico-border.

  9. E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 658 (9th Cir. 2021).

  10. U.S. Customs and Border Protection. CBP One™ Tips for Users. February 2023. Accessed December 8, 2024. https://www.cbp.gov/sites/default/files/assets/documents/2023-Feb/CBP%20One%20Tips%20for%20Users%20-%20English_1.pdf.

  11. Al Otro Inc., supra note, 5.

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  13. Circumvention of Legal Pathways. 88 Fed. Reg. 31314, 31358 (May 16, 2023).

  14. Al Otro Inc., supra note, 5.

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  30. Al Otro Lado, Inc. v. Mayorkas, No. 22-55988, slip op. (9th Cir. Oct. 23, 2024), https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/23/22-55988.pdf.

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  40. National Immigrant Justice Center. Solutions for a Human Border Policy. January 17, 2023. Accessed October 2024. https://immigrantjustice.org/staff/blog/solutions-humane-border-policy. 

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Disclaimer

The views expressed in this paper are solely those of the author and do not reflect the opinions of the editors or the journal.

ArticleYale Journal of International AffairsFall 2024, Mexico, United States