Innovation Law Lab et al. v. Nielsen, No. 3:19-cv-00807 (N.D. Cal., filed Feb. 14, 2019)
On December 20, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced a new government policy, the “Migrant Protection Protocols,” that would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. The administration voiced its intention to implement the policy “on a large scale basis,” beginning first with San Ysidro Port of Entry in California on January 28, 2019.
A lawsuit challenging the administration’s forced return policy, commonly known as the Remain in Mexico policy, was brought by legal organizations that serve asylum seekers and by eleven asylum seekers from Central America harmed by this policy. Defendants include DHS, CBP, USCIS and ICE. The complaint explains that the individual plaintiffs are particularly vulnerable to violence and discrimination in Mexico, of which many have already suffered. Furthermore, without access to legal representation, information regarding immigration court hearings, and financial resources, these asylum-seekers are meaningfully deprived of their right to apply for asylum.
In addition to alleging that the procedures for determining whether individuals will face persecution or torture in Mexico are unlawful, the complaint specifies the grossly deficient—and at times abusive—practices of CBP agents in carrying out these procedures. The complaint recounts cursory interviews during which plaintiffs routinely were not asked about their fear, were not provided explanations, were coerced into signing documents, and were questioned by agents who did not speak fluent Spanish and who interrupted, got angry with and threatened them. The procedural deficiencies undermine the U.S.’s domestic and international legal obligations to ensure nonrefoulement, or “withholding of removal” under the INA, which prohibits the return of any individual to a country where he or she would more likely than not face persecution.
The policy also substantially interferes with the ability of legal organizations serving asylum seekers and other immigrant populations, as it will strain and divert their resources to helping those in Mexico. Because the government failed to provide notice and comment before implementing this policy as required under the APA, the organizational plaintiffs did not have the opportunity to inform the defendants about the harmful consequences of such a policy or persuade them not to adopt it.
On February 20, 2019, Plaintiffs filed a motion for a temporary restraining order to enjoin the government’s policy of forced return until the court rules whether to grant a preliminary injunction. Defendants have since filed a motion to transfer the case to the Southern District of California.
Counsel: Judy Rabinovitz, Michael Tan, Omar Jadwat, Jennifer Chang Newell, Katrina Eiland, Julie Veroff, Lee Gelernt, Anand Balakrishnan, & Daniel Galindo, ACLU Immigrants’ Rights Project; Sean Riordan & Christine Sun, ACLU of Northern California; Melissa Crow, Mary Bauer, Saira Draper, & Gracie Willis, Southern Poverty Law Center; Blaine Bookey, Karen Musalo, Eunice Lee, Kathryn Jastram, & Sayoni Maitra, Center for Gender & Refugee Studies.