Doe v. Wolf, No. 3:19-cv-02119-DMS-AGS (S.D. Cal., filed Nov. 5, 2019) and No. 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” (MPP) 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 (DHS) 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 appealed to the Ninth Circuit. After oral argument, submission of the appeal was vacated pending the Supreme Court’s disposition of Wolf, et al. v. Innovation Law Lab, et al., No. 19-1212 (Innovation Law Lab), which challenged the legality of the MPP program as a whole.

On June 21, 2021, the Supreme Court vacated the decision in Innovation Law Lab as moot, given the Biden administration’s winddown and eventual termination of the MPP program (announced on June 1, 2021). In response, the Ninth Circuit ordered the parties in Doe to submit supplemental briefing on the question of whether the district court’s January 14, 2020 preliminary injunction should also be vacated as moot. On July 19, 2021, the Ninth Circuit concluded that because the Supreme Court had decided that the challenge to MPP as a whole in Innovation Law Lab was moot, that the narrower question presented in Doe was also moot. As a result, the Ninth Circuit remanded the case to the district court with instructions to vacate the January 14, 2020 preliminary injunction as moot. The parties subsequently entered into a stay of the litigation.

However, on August 13, 2021, the district court for the Northern District of Texas issued a nationwide injunction in Texas et al. v. Biden requiring the Biden administration to restart the MPP program “in good faith.” After the Supreme Court declined to stay the injunction on August 24, 2021, DHS issued a statement indicating its intent to appeal the injunction but stating that while the appeals process continues, DHS “will comply with the order in good faith.” As a result, on September 1, 2021, Plaintiffs filed a motion for reconsideration with the Ninth Circuit asking the court to vacate its July 19 order directing the district court to vacate the preliminary injunction and to direct the district court to reinstate the preliminary injunction based on changed circumstances. Defendants filed their response to the motion on September 17, 2021, and Plaintiffs filed their reply on September 20. On September 24, 2021, the Ninth Circuit denied Plaintiffs’ motion for reconsideration.

Back at the district court, Defendants argued that the matter was moot and, in the alternative, moved to stay litigation pending the Supreme Court’s decision in Texas v. Biden. On March 14, 2022, the district court denied Defendants’ motion and ordered them to answer the complaint by May 3, 2022.

On February 3, 2023, Defendants filed an unopposed motion to stay the deadline to respond to the complaint in light of the Supreme Court’s decision in Biden v. Texas, 142 S. Ct. 2528 (2022) holding that the district court did not have authority to issue the nationwide injunction ordering the restart of MPP. Defendants took the position that the case was now moot, but indicated that Plaintiffs do not believe the case is moot giving ongoing challenges to the end to MPP. As a result, the parties requested a stay of proceedings to allow other litigation to progress and to attempt resolution of the case. On February 6, 2023, the court granted the motion and stayed the deadline to answer.

Documents:

• Class Action Complaint
• Motion for Preliminary Injunction
• Opposition to Preliminary Injunction
• Reply in Support of Preliminary Injunction
• Order Granting Preliminary Injunction
• Defendants-Appellants’ Opening Brief
• Plaintiffs-Appellees’ Answering Brief
• Defendants-Appellants’ Reply Brief
• Plaintiffs-Appellees’ Supplemental Brief
• Defendants-Appellants’ Supplemental Brief re Mootness
• Plaintiffs-Appellees’ Supplemental Brief re Mootness
• Ninth Circuit Order Remanding to Vacate Preliminary Injunction
• Ninth Circuit Motion for Reconsideration
• Ninth Circuit Response to Motion for Reconsideration
• Ninth Circuit Reply in Support of Motion for Reconsideration
• Ninth Circuit Order Order Denying Motion for Reconsideration

Counsel: UCLA Center for Immigration Law and Policy

Contact: Monika Langarica | UCLA Center for Immigration Law and Policy | langarica@law.ucla.edu