While this case has been pending, and asylum seekers remain stranded in Mexico under the Turnback Policy, the Trump administration issued an interim final rule (the “Asylum Ban”) barring individuals from asylum eligibility in the United States if they transited through a third country and did not seek protection there first. On September 26, 2019, Plaintiffs filed a motion for preliminary injunction and a motion seeking provisional class certification asking the federal district court to keep Defendants from applying the Asylum Ban to provisional class members, in order to maintain their eligibility for asylum until the court rules on the legality of the Trump administration’s metering policy in this case.

On November 19, 2019, the court provisionally certified a class consisting of “all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. [port of entry] before July 16, 2019 because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.” The court also blocked Defendants from applying the Asylum Ban to members of the provisional class and ordered that Defendants apply pre-Asylum Ban practices for processing the asylum applications of members of the class. Class counsel prepared a Frequently Asked Questions resource to address common questions about the court’s order, class membership, and implementation.  The FAQ resource will be updated with developments and is available here.

The same day the court granted Plaintiffs’ preliminary injunction on the application of the Asylum Ban, the Trump administration issued another interim final rule (the “Asylum Cooperation Agreements Rule” or “ACA Rule”) that denies eligibility for asylum in the U.S. to those migrants who enter the United States after its effective date—November 19, 2019—and, instead, would send them to third countries to seek protection. Like the Asylum Ban, the ACA Rule does not carve out an exception for those who followed the Trump administration’s metering policy and have been waiting in Mexico to seek asylum in the United States. On December 6, 2019, Plaintiffs filed a motion seeking a temporary restraining order to prevent the application of the ACA Rule to those migrants who were metered before November 19, 2019, and would have been able to access the U.S. asylum process but for the ACA Rule.