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 back asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

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, and coercion–to deny bona fide asylum seekers the opportunity to pursue their claims. 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.

On October 12, 2018, Plaintiffs filed an amended complaint adding allegations of an official “Turnback Policy” that formalizes the widespread, unlawful practice described in the original complaint. Specifically, Plaintiffs allege that high-level agency officials adopted a metering policy requiring CBP officers to drastically restrict the number of asylum seekers processed at POEs along the U.S.-Mexico border by turning them back when they present themselves for inspection and making them wait in Mexico, based on false claims of a lack of “capacity.”  The amended complaint also adds eight individual plaintiffs who were subject to the Turnback Policy to the lawsuit. 

In response to Plaintiffs’ amended complaint, Defendants filed a motion to dismiss, which the court granted in part and denied in part on July 29, 2019..  Each of Plaintiffs’ claims survived, at least in part. 

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.