Recommended Citation
Brandon Delia,
Human Rights on Pause: Assessing the CBP Digital Metering Process and Obligations of Non-Refoulement Beyond Borders,
17 Case W. Res. J.L. Tech. & Internet
A1
(2026)
Available at:
https://scholarlycommons.law.case.edu/jolti/vol17/iss1/1
Abstract
Migrants are once again being told to wait in line before seeking their right to the asylum process. In 2023, the Biden administration introduced the CBP One app as a new requirement for asylum seekers approaching the US-Mexico border. Not long after, it evolved into a strict legal prerequisite where without a CBP One appointment, migrants faced either immediate turnbacks or, if they nonetheless attempted to seek asylum defensively after entry, expedited removal and a potential five-year bar on reentry. Those who managed to register often waited months in cartel-controlled border towns, risking extortion, kidnapping, or worse. Paired with CBP’s turnback policy, the app transformed the right to seek asylum into a digital lottery system—yet another iteration of metering practices along the border.
This note explores how the CBP One app uniquely created a digital geofenced border deep within Mexican territory and contends that this novel practice extended US jurisdiction hundreds of miles beyond its ports of entry while rationing access to asylum through scarce appointments. The discussion then turns to the government’s reliance on the app and the related turnback policy, arguing that together they amount to a violation of the peremptory norm of non-refoulement, as examined within the jurisdictional framework of the Alien Tort Statute (ATS). Civil society organizations have already begun challenging the former CBP one regime under international law, and this note expands on those efforts by contending that the ATS provides a plausible jurisdictional basis for adjudicating non-refoulement violations arising from the former app’s digital border. Ultimately, this note proposes judicial solutions to the intricacies surrounding challenges under the ATS, as well as legislative amendments clarifying ATS liability, and, most importantly, normative reforms to ensure that future attempts at modernizing this longstanding universal right remains aligned with the state’s obligations to asylum seekers.