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

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

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


On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham and Watkins, LLP, filed a class action lawsuit challenging Customs and Border Protection’s (CBP) unlawful practice of turning away asylum seekers who present themselves at ports of entry along the U.S.-Mexico border. The case was filed in the U.S. District Court for the Central District of California.

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 six courageous asylum seekers who experienced CBP’s unlawful conduct firsthand. Their experiences demonstrate that CBP uses a variety of tactics – including misrepresentation, threats and intimidation, verbal abuse and physical force, and coercion–to deny bona fide asylum seekers the opportunity to pursue their claims. The Complaint alleges that the government’s refusal to allow asylum seekers to pursue their claims 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.

In October 2017, Defendants moved to transfer the case out of the Central District of California. On November 21, 2017, the court granted Defendants’ Motion to Transfer Venue to the U.S. District Court for the Southern District of California and dismissed without prejudice all pending motions, including Plaintiffs’ Motion for Class Certification.

On December 14, 2017, Defendants filed a Motion to Dismiss the case in its new venue. On August 21, 2018, the District Court granted in part and denied in part Defendant’s Motion to Dismiss. The court found that the six individual plaintiffs and Al Otro Lado may move forward with most of their claims, but dismissed without prejudice, Plaintiffs’ claims of coercion by CBP officers and Plaintiffs’ claims of an alleged policy of turning away asylum seekers.

On September 17, 2018, the District Court granted in part and denied in part Defendants’ Motion for a Protective Order. The court concluded that Defendants “consistently failed to consider their affirmative duty to preserve documents and information” and ordered that Defendants preserve certain video and audio data collected at POEs.

On October 12, 2018, Plaintiffs filed their First Amended Complaint. In the amended complaint, Plaintiffs allege an official “Turnback Policy” that formalizes the widespread, unlawful practice described in the original complaint, and supports the continued practice. Plaintiffs also continue to assert the remaining claims that withstood Defendants’ Motion to Dismiss. In addition, the amended complaint adds eight individual plaintiffs to the lawsuit, who were all subject to the Turnback Policy.

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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...

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