Doe v. Wolf

Doe v. Wolf, No. 3:19-cv-02119-DMS-AGS (S.D. Cal., filed Nov. 5, 2019) and 20-55279 (9th Cir., filed Mar. 13, 2020)

People who are seeking asylum but have been forced to wait in Mexico under the Trump Administration’s so-called “Migrant Protection Protocols” have a right to not be returned to Mexico if it is more likely than not that they will be persecuted or tortured there. But the U.S. Department of Homeland Security blocked such individuals from consulting with their lawyers prior to and during life-or-death interviews on this matter, known as non-refoulement interviews. The ACLU Foundation of San Diego & Imperial Counties filed a class action lawsuit to challenge this systemic denial of the right to counsel in U.S. Customs and Border Protection (CBP) custody.

On January 14, 2020, the District Court entered a preliminary injunction guaranteeing access to counsel to a class of people detained in CBP custody while awaiting and undergoing non-refoulement interviews. The District Court first found that 8 U.S.C. § 1252(a)(2)(b)(ii), which prohibits judicial review of a “decision or action” that is “in the discretion of the Attorney General or the Secretary of Homeland Security,” did not foreclose review of the Plaintiffs’ claims. The Court further found that 5 U.S.C. § 555(b), which provides that “[a] person compelled to appear in person before an agency . . . is entitled to be accompanied, represented, and advised by counsel,” applies to non-refoulement interviews. As such, the District Court ordered that “Respondents may not conduct class members’ non-refoulement interviews without first affording the interviewees access to their retained counsel both before and during any such interview.”  The government has appealed to the Ninth Circuit. Oral argument is scheduled for November 13.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties

Contact: Monika Langarica, Immigrants’ Rights Staff Attorney, ACLU Foundation of San Diego & Imperial Counties | mlangarica@aclusandiego.org