Al Otro Lado et al. v. McAleenan et al., No. 3:17-cv-02366 (S.D. Cal., filed July 12, 2017), No. 22-55988 (9th Cir., filed Sept. 21, 2022), and No. 22-56036 (9th Cir., filed Nov. 4, 2022)

On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham & Watkins, LLP, filed a class action lawsuit challenging U.S. Customs and Border Protection (CBP)’s unlawful practice of turning away 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) and 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 and physical abuse, and coercion—to deny bona fide asylum seekers the opportunity to pursue their claims. The complaint alleges that CBP’s conduct violates the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

On November 13, 2017, Plaintiffs filed a motion for class certification, which included dozens of declarations from asylum seekers CBP had turned away at the border. On November 28, 2017, the Court granted Defendants’ motion to transfer venue to the Southern District of California and dismissed all pending motions without prejudice. On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of plaintiffs’ claims to go forward. On October 12, 2018, plaintiffs filed an amended complaint highlighting the Trump administration’s specific implementation of the “turnback policy” as well as the administration’s own “zero-tolerance policy.”

Defendants filed a motion to dismiss the amended complaint on November 29, 2018, which Plaintiffs opposed. Close to two dozen states filed an amicus brief in support of Plaintiffs’ opposition to the motion to dismiss, as did many members of Congress, Amnesty International, law professors, and nineteen nonprofit immigrant advocacy organizations.

In July 2019, the judge rejected most of Defendants’ claims in the motion to dismiss and ordered the government to file an answer to Plaintiffs’ second amended complaint, which it did in August 2019. In February, the parties completed briefing on certification of a class consisting of all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at 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, as well as sub-class of those who were or will be denied access to the U.S. asylum process as a result of metering over the same time period.

Motion for Preliminary Injunction

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 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.

On December 4, 2019, Defendants appealed the district court’s order to the Ninth Circuit Court of Appeals. On March 5, 2020, the Ninth Circuit denied Defendants’ motion for a stay of the order until the appellate court decides the merits of the appeal. In doing so, the Ninth Circuit lifted its previously imposed emergency temporary stay of the order. At this time, the district court’s order is in effect.

On July 17, 2020, Plaintiffs filed a motion to clarify the preliminary injunction, asserting that since the Ninth Circuit lifted the temporary stay, Defendants had committed “numerous violations of the preliminary injunction,” including “tak[ing] minimal and insufficient steps to identify class members and to ensure that the Asylum Ban does not impact their eligibility for asylum” and refusing to produce the written guidance sent to the various government agencies involved in implementing the preliminary injunction. Defendants responded in opposition to the motion on August 3, 2020 and Plaintiffs replied on August 10, 2020.

Class Certification

Oral argument was held on the motion for class certification on July 30, 2020. On August 6, 2020, the district court granted Plaintiffs’ motion for class certification, certifying 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 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.”

Discovery began and on September 4, 2020 Plaintiffs filed a motion for summary judgment. On September 25, 2020, Defendants filed a cross motion for summary judgment and opposition to Plaintiffs’ motion.

Class counsel have prepared a Frequently Asked Questions (FAQ) resource to address common questions about the court’s order, class membership, and implementation.  The FAQ resource will be updated periodically and is available here.

Motion for Summary Judgment

The parties filed cross-motions for summary judgment in September 2020. On September 2, 2021, the court granted Plaintiff’s motion for summary judgment in part, specifically to Plaintiff’s claim for violations of APA § 706(1) and Fifth Amendment Due Process Clause. Defendant’s motion for summary judgment was granted as to claims based on the ultra vires violations of the right to seek asylum and violation of the Alien Tort Statute. The court deferred a decision on remedy and asked the parties to submit briefing on remedies in light of the APA § 706(1) finding and considering how Title 42 would affect the implementation of a remedy. The parties submitted supplemental briefs on October 1, 2021. On April 1, 2022, the parties filed a joint status report addressing current issues regarding court oversight and remedies.

On August 5, 2022, the court issued two decisions. First, the judge converted the preliminary injunction to a permanent injunction and granted in part, but denied in part, Plaintiffs’ motion to clarify the preliminary injunction order. Second, she issued a decision with respect to remedies on summary judgment. The court concluded that it could not enter any injunctive relief, relying on the Supreme Court’s decisions in Garland v. Aleman Gonzalez, 142 S. Ct. 2057 (2022). Instead, the court entered declaratory judgment, declaring that “absent any independent, express, and lawful statutory authority, Defendants’ refusal to deny inspection or asylum processing to noncitizens who have not been admitted or paroled and who are in the process of arriving in the United States at Class A Ports of Entry is unlawful regardless of the purported justification for doing so.”

The parties have cross-appealed the final judgment to the Ninth Circuit. On December 20, 2022, the Government filed its opening brief. Plaintiffs filed the second brief on cross-appeal on February 21, 2023, and the appeal was fully briefed as of May 22, 2023. The same amici that submitted amicus briefs in the district court also filed briefs on appeal. The Ninth Circuit held oral argument on November 28, 2023 and subsequently asked for supplemental briefing on questions related to what constitutes unreasonable delay versus unlawful withholding under the APA, which both parties submitted on January 17, 2024.

Documents:

• Complaint
• Motion for Class Certification
  • Plaintiff Declarations in Support of Class Certification
  • Declarations of Asylum Seekers Turned Away by CBP
  • Declarations of Immigration and Human Rights Advocates in Support of Class Certification
• Decision Granting Motion to Transfer Venue
• Defendants’ Renewed Motion to Dismiss
• Plaintiffs’ Opposition to Motion to Dismiss
• Defendants’ Reply in Support of Motion to Dismiss
• Amended Complaint
• Amicus Brief of Members of Congress in Support of Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
• Amicus Brief of 19 States and the District of Columbia in Support of Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
• Amicus Brief of 19 Organizations Representing Asylum Seekers in Support of Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
• Amicus Brief of Immigration Law Professors in Support of Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
• Amicus Brief of Amnesty International in Support of Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
• Order Denying Motion to Dismiss Second Amended Complaint
• Motion for Preliminary Injunction
• Motion for Class Certification
• Order Granting Plaintiffs’ Motion for Provisional Class Certification and Motion for Preliminary Injunction
• Order Lifting Stay of Preliminary Injunction
• Plaintiffs’ Motion to Clarify Preliminary Injunction
• Order Granting Class Certification
• Plaintiffs’ Motion for Summary Judgment
• Plaintiff’s Reply in Support of Summary Judgment
• Order Granting Motion for Clarification
• Amicus Brief of Haitian Bridge Alliance et. al in Support of Plaintiffs’ Motion for Summary Judgment
• Amicus Brief of Fourteen Organizations Advocating for Asylum Seekers in Support of Plaintiffs’ Motion for Summary Judgment
• Plaintiff’s Motion for Temporary Restraining Order
• Order Granting Plaintiffs’ Motion for Temporary Restraining Order
• Summary Judgment Order
• Plaintiff’s Supplemental Briefing on Remedy
• Joint Status Report re Motion for Oversight and Remedies
• Order Converting Preliminary Injunction to a Permanent Injunction
• Remedies Opinion
• First Brief (Government)
• Second Brief (Plaintiffs)
• Third Brief (Government)
• Fourth Brief (Plaintiffs)
• Defendants’ Supplemental Briefing on APA
• Plaintiffs’ Supplemental Briefing on APA

Counsel: Mayer Brown LLP | American Immigration Council | Center for Constitutional Rights | Southern Poverty Law Center | Center for Gender and Refugee Studies| Vinson & Elkins LLP

Contact: Melissa Crow | Center for Gender and Refugee Studies | crowmelissa@uchastings.edu