Al Otro Lado v. Nielsen

Al Otro Lado et al. v. Nielsen et al., Case No. 3:17-cv-02366 (S.D. Cal., filed July 12, 2017)

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 December 15, 2017, Defendants again filed a motion to dismiss, and Plaintiffs opposed that motion. On February 5, 2018, Defendants filed a reply to Plaintiff’s opposition. 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 early September 2019, Plaintiffs filed a motion to provisionally certify a class and also for a preliminary injunction.

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. 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.

The same day the court granted Plaintiffs’ preliminary injunction on the application of the Asylum Ban, the Trump administration issued another interim final rule (the “Asylum Cooperation Agreements Rule” or “ACA Rule”) that denies eligibility for asylum in the U.S. to those migrants who enter the United States after its effective date—November 19, 2019—and, instead, would send them to third countries to seek protection. Like the Asylum Ban, the ACA Rule does not carve out an exception for those who followed the Trump administration’s metering policy and have been waiting in Mexico to seek asylum in the United States. On December 6, 2019, Plaintiffs filed a motion seeking a temporary restraining order to prevent the application of the ACA Rule to those migrants who were metered before November 19, 2019, and would have been able to access the U.S. asylum process but for the ACA Rule.

Counsel: Latham & Watkins LLP | American Immigration Council | Center for Constitutional Rights | Southern Poverty Law Center

Contact: Melissa Crow | Southern Poverty Law Center | Melissa.Crow@SPLCenter.org