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

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: 

• Al Otro Lado v. Mayorkas Lawsuit: Template Materials In Support of Preliminary Injunction Relief