Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers

Al Otro Lado, Inc. v. Wolf, No. 3:17-cv-02366-BAS-KSC (S.D. Cal.)

STATUS:
Pending

This case challenges the government’s policy – the Turnback Policy – of turning away asylum seekers at ports of entry (POEs) across the U.S.-Mexico border since 2016.

The plaintiffs in the case are Al Otro Lado, a non-profit legal services organization that serves indigent deportees, migrants and refugees in Los Angeles and Tijuana, along with individual, courageous asylum seekers who experienced CBP’s unlawful conduct firsthand. Their experiences demonstrate that CBP has used a variety of tactics – including misrepresentation, threats and intimidation, verbal abuse and physical force, metering, and coercion–to deny bona fide asylum seekers the opportunity to pursue their claims.

In April 2018, the government issued guidance formalizing and focusing the Turnback Policy through a policy of metering. Under the metering policy, CBP officials assert a lack of capacity and refuse to inspect and process asylum seekers, forcing them to wait in Mexico.

The complaint alleges that CBP’s refusal to allow asylum seekers access to the asylum process violates the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

Plaintiffs are represented by the American Immigration Council, the Southern Poverty Law Center, the Center for Constitutional Rights, and Mayer Brown LLP.

On August 6, 2020, the district court granted Plaintiffs’ motion for class certification, allowing the case to proceed on behalf of all asylum seekers along the U.S.-Mexico border who were or will be prevented from accessing the asylum process at ports of entry as a result of the government’s Turnback Policy. Specifically, the court certified a class consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of [CBP] officials on or after January 1, 2016.” The court also certified a subclass consisting of “all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.”

On September 2, 2021, after the parties completed briefing on cross motions for summary judgment, the court declared unlawful the U.S. government’s turnbacks of asylum seekers arriving at ports of entry along the U.S southern border. Specifically, the court concluded that turning back asylum seekers violates section 706(1) of the Administrative Procedure Act and the Fifth Amendment’s Due Process Clause because the Immigration and Nationality Act imposes a mandatory duty on government officials to inspect and process asylum seekers who are arriving at ports of entry.

Permanent Injunction Addressing the Intersection of Metering and the Application of the Asylum Transit Ban

While this case was pending, and asylum seekers remained 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 district court to keep Defendants from applying the Asylum Ban to provisional class members.

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. 

On October 30, 2020, the district court granted Plaintiffs’ motion to clarify the preliminary injunction, finding: (1) that the government must make all reasonable efforts to identify class members; (2) that the injunction covers class members who had the Asylum Ban applied to their cases and received final asylum denial orders before the injunction issued and while it was stayed; and (3) that DHS and EOIR must take affirmative steps to reopen or reconsider past determinations that potential class members were ineligible for asylum based on the Asylum Ban (“Clarification Order”). 

Due to Defendants’ selective and insufficient compliance with both the preliminary injunction and the Clarification Order, Plaintiffs filed a motion to enforce these prior orders on December 15, 2020 and a subsequent motion for court oversight of compliance with the preliminary injunction on August 24, 2021.

On December 17, 2020, the government issued a final agency rule on the Asylum Transit Ban, which was scheduled to go into effect on January 19, 2021. The final rule was functionally identical to the previously issued interim final rule on the Asylum Transit Ban. On January 6, 2021, Plaintiffs filed a motion for temporary restraining order to block the application of the final rule in accord with the injunction enjoining the application of the Asylum Ban to class members that remains in effect.  

On August 5, 2022, the district court issued its remedies opinion and separately modified its preliminary injunction as clarified in 2020 and granted Plaintiffs’ request to convert that preliminary injunction into a permanent injunction. Among other things, the Court specified in its order that Defendants must assist in enforcement efforts by:

(1) identifying potential class members by reviewing Forms I-213 (which documents a recollection of a border official’s conversation with a migrant) for inclusion on a “Master List” of potential class members,

(2) informing identified PI class members in administrative proceedings before USCIS or EOIR, or in DHS custody, of their class membership,

(3) expanding the temporal scope for EOIR adjudicators’ sua sponte review of records of proceeding (“ROP Review”) for individuals identified from the Master List to include final orders of removal issued up until July 31, 2020; and

(4) considering any evidence of metering during the pre-Ban time period in DHS’ records prior to making a class member determination.

In October 2022, Defendants appealed the district court’s permanent injunction to the Ninth Circuit. That appeal is pending and the district court’s permanent injunction remains in effect.

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.

Related Resources: 

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November 15, 2017

It is an egregious, well-documented reality that U.S. Customs and Border Protection (CBP) frequently turns away people seeking asylum along the U.S. southern border. But new evidence presented to...

  • August 10, 2022
    On Friday, August 5, a district court judge ruled that the government’s turnback policy is illegal. The Council and partners called 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.
  • September 1, 2021
    Immigrant rights advocates released a statement after presenting oral arguments before U.S. District Court of the Southern District of California, where they urged the court to declare unlawful and permanently end the Trump-era turnback policy.
  • January 18, 2021
    A federal court issued a temporary restraining order blocking the Trump administration’s latest attempt to prevent asylum seekers from accessing the U.S. asylum process.
  • January 7, 2021
    Immigrant rights advocates moved for a temporary restraining order to block the Trump administration’s latest attempt to circumvent an earlier court order prohibiting the government from applying an asylum ban to people whom U.S. Customs and Border Protection had previously turned away from ports of entry along the U.S.-Mexico border.
  • September 8, 2020
    Asylum seekers who have been turned back by U.S. Customs and Border Protection from ports of entry along the U.S.-Mexico border asked a federal court to permanently stop the Trump administration’s Turnback Policy and declare it unlawful.
  • August 6, 2020
    A federal judge has granted class certification in Al Otro Lado v. Wolf, a lawsuit challenging the Trump administration’s policy of turning back asylum seekers at ports of entry. The ruling provides that the challenge to the Turnback Policy will continue on behalf of all asylum seekers along the U.S.-Mexico border who were or will be prevented from accessing the asylum process at ports of entry as a result of the government’s Turnback Policy.
  • March 5, 2020
    A Ninth Circuit Court of Appeals panel today blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process before the ban was implemented. The decision lifts a prior administrative stay of the district court’s preliminary injunction. That injunction prohibits the government from applying the asylum ban to those who had been illegally metered before the ban went into effect.
  • December 6, 2019
    Immigrant rights attorneys filed an emergency motion to block the government from applying another Trump administration rule to asylum seekers forced by a government policy known as “metering” to wait in Mexico to access the U.S. asylum process. The rule — the latest of the administration’s numerous attempts to eviscerate America’s asylum system — sends asylum seekers to third countries, including Guatemala, Honduras, and El Salvador, to seek protection and would deny those previously subject to the government’s metering policy the opportunity to seek asylum in the United States.
  • November 19, 2019
    A federal judge blocked the Trump administration’s asylum ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process before the ban was implemented.
  • September 26, 2019
    Immigrant rights attorneys moved to block the Trump administration’s Asylum Ban from affecting tens of thousands of migrants who have already attempted to access the U.S. asylum process before the ban was implemented. With limited exceptions, the Asylum Ban prohibits anyone who traveled through a third country and did not seek protection there from obtaining asylum here. The request filed today is in the ongoing case challenging the Trump administration’s policy of turning back asylum seekers at ports of entry on the U.S.-Mexico border, including the “metering” policy.
  • July 30, 2019
    A federal district court has rejected the government’s second attempt to dismiss a lawsuit challenging the Trump administration's unlawful turnbacks of asylum seekers who present themselves at ports of entry along the U.S.-Mexico border – including its attempt to choke off asylum applications through a so-called “metering” process.
  • February 27, 2019
    The Southern Poverty Law Center, the Center for Constitutional Rights, and the American Immigration Council filed a motion late last week seeking information regarding possible U.S. government harassment and retaliation against the leadership of the immigrants’ rights organization Al Otro Lado.
  • October 16, 2018
    In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border
  • November 14, 2017
    An immigrant rights group, Los Angeles-based Al Otro Lado, and six asylum seekers filed a motion for class certification in their lawsuit challenging the government’s practice of depriving vulnerable asylum seekers of access to the U.S. asylum process in clear violation of U.S. and international law.
  • January 13, 2017
    A coalition of immigrant and civil rights groups filed a complaint with the Department of Homeland Security’s Office of Civil Rights and Civil Liberties on behalf of numerous adult men and women, families and unaccompanied children who, over the past several months, were denied entry to the United States at ports of entry along the U.S.-Mexico border despite having asserted a fear of returning to their home countries or an intention to seek asylum under U.S. law.
  • July 12, 2017

    Washington D.C. - Today an immigrant rights group and several asylum seekers filed a class action lawsuit against officials at the U.S. Department of Homeland Security and U.S.

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