Al Otro Lado v. Mayorkas

U.S. District Court for the Southern District of California, No. 3:17-cv-02366-BAS-KSC

What is the government doing and why are we challenging it?

Since at least 2016, the Department of Homeland Security (DHS) and Customs and Border Protection (CBP) have unlawfully turned back asylum seekers at ports of entry (POEs) along the U.S.-Mexico border, rather than complying with their legal obligations to process them for asylum. CBP has used tactics such as lies, intimidation, coercion, verbal abuse, physical force, the threat of family separation, and delays to deny people access to the asylum process, forcing vulnerable asylum seekers to spend months in precarious conditions in Mexico. In 2018, the government formalized a metering policy whereby CBP prevents asylum seekers in the process of arriving at POEs from seeking asylum based on an alleged lack of capacity to inspect and process them.

On July 12, 2017, CGRS’s partners initiated this class action lawsuit to protect asylum seekers’ right to pursue protection at the U.S.-Mexico border. The case challenges the government’s unlawful turnbacks through metering and other tactics under the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement – the principle of international law that forbids the United States from returning a person to a country where they would face persecution.

On July 16, 2019, the Trump administration issued an interim final rule that categorically rendered individuals ineligible for asylum if they had failed to seek and receive a final order denying asylum in at least one country through which they transited en route to the United States (often referred to as the “Asylum Ban” or “Transit Ban”). See 84 Fed. Reg. 33,829. In essence, after turning back asylum seekers to wait in Mexico, the government shut the door on them by adopting the Transit Ban.

On September 26, 2019, the plaintiffs sought a preliminary injunction preventing the government from applying the Transit Ban to all non-Mexican asylum seekers metered before July 16, 2019, to ensure that they would benefit from any future court decision that turnbacks were illegal. 

What’s the status of this case?

Preliminary Injunction: Intersection of the Turnback Policy and the Transit Ban

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. POE 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 issued a preliminary injunction prohibiting the government from applying the Transit Ban to provisional class members and ordering them to apply pre-Transit Ban practices in processing these individuals’ asylum applications. 

On December 4, 2019, the government appealed the district court’s order to the Ninth Circuit Court of Appeals and sought a stay pending the appeal, which was denied. At this time, the district court’s order is in effect, and the government’s appeal remains pending.

Order Clarifying the Preliminary Injunction

On October 30, 2020, the district court granted the plaintiffs’ subsequent motion to clarify the preliminary injunction, finding: (1) that the government must make all reasonable efforts to identify class members; (2) that the injunction covers class members who had the Transit Ban applied to their cases and received final asylum denial orders before the injunction issued and while it was stayed; and (3) that DHS and the Executive Office for Immigration Review (EOIR) must take affirmative steps to reopen or reconsider past determinations that potential class members were ineligible for asylum based on the Transit Ban (Clarification Order).

On December 2, 2020, the government appealed the Clarification Order. The Ninth Circuit granted a partial administrative stay of the government’s obligation “to take affirmative steps to find and reopen or reconsider cases” in which class members had the Transit Ban applied to their cases and received final asylum denial orders before the injunction issued or while it was stayed. The remainder of the Clarification Order remains in effect.

Temporary Restraining Order Regarding Asylum Ban Final Rule

On December 6, 2021, the plaintiffs sought a temporary restraining order blocking the application of the Transit Ban final rule on the same basis as the preliminary injunction enjoining the application of the interim final rule to provisional class members.

On January 18, 2021, the court granted a temporary restraining order prohibiting the application of the final rule to members of the previously-certified provisional class. (The final rule was later preliminarily enjoined in its entirety.)

Motions For Class Certification and Summary Judgment

On August 6, 2020, the district court granted the plaintiffs’ motion for class certification, allowing the case to proceed on behalf of 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 consisting 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.”

On September 2, 2021, in response to the parties’ cross-motions for summary judgment, the court found that the government violated its statutory duties under 8 U.S.C. § 1158(a)(1) and § 1225, as well as its due process obligations, by turning back asylum seekers at POEs without inspecting and processing them. At the court’s request, the parties subsequently submitted further briefing regarding appropriate remedies in this case.

Whose life is at stake?

This class action seeks to protect all asylum seekers prevented from accessing the U.S. asylum process at POEs along the U.S.-Mexico border as a result of the government’s turnback policy.

The plaintiffs include Al Otro Lado, a non-profit legal services organization serving indigent asylum seekers and others on both sides of the U.S.-Mexico border, as well as 13 individual asylum seekers harmed by the government’s turnback policy.

For example, Bianca Doe is a transgender asylum seeker who was subjected to extreme and persistent physical and sexual assault in Honduras and Mexico City, including at the hands of Mexican police. Fearing for her safety in Tijuana, Bianca presented at the San Ysidro POE, but CBP officers put her on a waitlist and told her she would have to wait several weeks in Mexico. Fearing for her life, she climbed a fence on a beach at the border in Tijuana, but a CBP officer threatened to call Mexican police and forced her to climb back over. Desperate for protection, Bianca attempted to present at the POE again, but she was again told that CBP had no capacity to inspect and process asylum seekers.

Who’s involved?

CGRS is co-counsel, along with the American Immigration Council, the Southern Poverty Law Center, the Center for Constitutional Rights, and Mayer Brown LLP.

How can you help?

Visit our Action Page to learn more about how you can support asylum seekers. You can support CGRS’s vital work on cases like this one by making a donation.

Need more information?

Contact Brianna Krong, Communications and Advocacy Manager, at krongbrianna@uchastings.edu.

Resources for Advocates

Class counsel’s Template Materials in Support of Preliminary Injunction Relief website provides resources to assist preliminary injunction class members in moving to reopen their cases.

Class counsel’s Frequently Asked Questions resource addresses common questions about the court’s preliminary injunction order, class membership, and implementation.

CGRS has also produced resources to support attorneys representing clients impacted by policies affecting asylum seekers at the border. Click here to request materials relevant to your client’s case.

Legal Documents

Press Releases

Select Media Coverage

“Federal judge says forcing asylum-seekers to wait in Mexico is illegal,” Associated Press, September 2, 2021

“Federal court blocks Trump's rule barring asylum-seekers who travel through 3rd country to reach U.S.,” Rafael Carranza, Arizona Republic, March 5, 2020

“Attorneys challenge third-country asylum ban effects on migrants who were ‘metered’ under other US policy,” Kate Morrissey, San Diego Union-Tribune, September 26, 2019