Filed Date: July 12, 2017
Case Ongoing
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This case concerns the legality of the government’s treatment of asylum seekers at the U.S.-Mexico border. On July 12, 2017, a group of Honduran and Mexican asylum seekers and Al Otro Lado, a legal service organization which supports indigent deportees, refugees, and migrants, filed this class action suit in the U.S. District Court for the Central District of California. The pseudonymous plaintiffs fled gang-related and/or severe domestic violence and presented themselves at a Port of Entry (POE) at the U.S.-Mexico border to seek protection; they alleged that they were wrongfully denied access to an asylum screening. Represented by the Center for Constitutional Rights, the American Immigration Council, and private counsel, the plaintiffs sought declaratory and injunctive relief against the U.S. Department of Homeland Security (“DHS”) and two of its component agencies: Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”). The plaintiffs claimed violations of the Immigration and Nationality Act (“INA”), the Administrative Procedure Act (“APA”), the Due Process Clause of the Fifth Amendment, and the Non-Refoulement Doctrine under international law. They brought this class action suit pursuant to the Declaratory Judgment Act and the APA.
The suit arose from Al Otro Lado's Refugee Program in Tijuana, Mexico, which assisted individuals seeking protection from persecution. The program included large-scale clinics in Tijuana to provide a general overview of asylum law and procedure to asylum seekers before they presented themselves at POEs. The plaintiffs claimed that since the summer of 2016, CBP officials systematically prevented asylum seekers arriving at POEs along the U.S.-Mexico border from accessing the asylum process. They claimed that immigration officials used misrepresentations, threats, intimidation, verbal and physical abuse, and coercion to deny the plaintiffs asylum access. For example, the plaintiffs alleged that CBP officials turned away asylum seekers by falsely informing them that the U.S. was no longer providing asylum, that a law providing asylum to Central Americans ended, and that the U.S. was no longer accepting mothers with children for asylum. The complaint also alleged that CBP officials intimidated asylum seekers by threatening to deport them and take away their children if they did not renounce a claim for asylum. The agents allegedly forced asylum seekers to sign forms in English, without translation, in which the asylum seekers recanted their fears of persecution. The plaintiffs class certification, declaratory relief, injunctive relief, and attorneys’ fees and costs.
Additionally, Al Otro Lado claimed that it was forced to divert substantial resources away from its Los Angeles practice and non-refugee programs to counteract the government's unlawful practices, by sending its representatives to Tijuana to accompany asylum seekers to POEs, training pro bono attorneys to provide more individualized representation, and providing more in-depth presentations to large groups.
After the complaint was filed, the government agreed to allow the class representatives and their children to present themselves at the San Ysidro and Laredo ports of entry and access an asylum screening. They informed the court that the plaintiffs all passed these screenings and were referred to the Immigration Court for removal proceedings, where they could submit asylum applications. The case continued on and was assigned to Judge John F. Walter and Magistrate Judge Jean P. Rosenbluth.
On October 12, 2017, the defendants moved to dismiss the case for failure to state a claim upon which relief could be granted, for lack of standing, and for mootness of the plaintiff's claims brought under the APA. Specifically, they argued that because the class representatives were given the opportunity to be properly processed under the INA in the days after the filing of this suit, the plaintiffs received all the court could have offered. They also argued that the alleged APA violation could not sustain a cause of action because it did not involve a final agency decision.
That same month, Al Otro Lado moved to compel the government to produce requested documents and video to corroborate its claims that the government unlawfully instructed asylum seekers to recant their fears of persecution without an interpreter. Judge Walter ordered the parties to engage in private mediation to resolve this discovery matter.
On November 13, 2017, Al Otro Lado moved to certify a class of “all noncitizens who (i) have since June 2016 presented themselves, or will in the future present themselves, at a port of entry along the U.S.-Mexico border (ii) have asserted or will assert an intention to seek asylum or have expressed or will express a fear of persecution in their home countries, and (iii) have been or will in the future be denied access to the U.S. asylum process by U.S. Customs and Border Protection officers.”
On November 21, 2017, Judge Walter transferred the case to the District Court for the Southern District of California. 2017 WL 10592130. He found that the Southern District’s location along the U.S.-Mexico border made it the more proper forum, especially because none of the events at issue occurred in the Central District. He also found that the Southern District would provide the easiest access to the evidence necessary to defend this action because the overwhelming majority of witnesses resided in that district and five of the six named plaintiffs sought entry at POEs there.
Upon transfer, the case was assigned to Judge Cynthia Bashant and Magistrate Judge Karen S. Crawford. On December 8, 2017, the plaintiffs moved for resolution of the outstanding discovery dispute and, in response, the government moved to stay discovery on December 18, 2017. The government filed a second motion to dismiss on December 14, 2017.
Judge Bashant granted the plaintiff's motion for the asylum seekers to proceed pseudonymously on December 20, 2017. 2017 WL 6541446. She found that the severity of the harm alleged if they were returned to their home countries without the opportunity to seek asylum was substantial. She also found that their fears about this potential harm were objectively reasonable and that they were vulnerable to retaliation by the U.S. government if their true names were revealed.
On August 20, 2018, the court partially granted the government’s motion to dismiss, allowing most of the plaintiffs’ claims to go forward. Judge Bashant found that the complaint plausibly showed the existence of a pattern or practice of denying asylum seekers; therefore the government’s post-complaint conduct (i.e., its processing of the class representatives) had not mooted Al Otro Lado’s interest in the case. However, Judge Bashant also found that the complaint failed to show the existence of a categorical policy of refusing asylum access, and thus dismissed the APA 5 U.S.C. § 706(2) claim without prejudice.
On October 12, 2018, the plaintiffs filed their first amended complaint, followed by a second amended complaint on November 13, 2018. The second amended complaint contended that CBP adopted a formal policy to “restrict” the flow of asylum seekers without travel documents from crossing the border into POEs. The plaintiffs alleged violations of the right to seek asylum under the INA, APA 5 U.S.C. § 706(1) and (2), the Fifth Amendment’s Due Process Clause, and the Non-Refoulement Doctrine. The defendants moved to dismiss the second amended complaint on November 29, 2018.
The case was stayed for about a month in January as a result of the government shutdown.
Over 70 members of Congress, 19 states (including California and New York) and Washington D.C., immigration and refugee law scholars, and Amnesty International filed amicus briefs in February 2019 in support of Al Otro Lado's opposition to the government's motion to dismiss. Congresspeople argued that the INA's Congressional intent was to ensure prompt processing of asylum seekers at the border. Scholars argued that U.S. asylum law applies to asylum seekers who are stopped mere steps from the border. The states, which collectively accept over 70% of asylees in the country, explained that they were prepared to divert resources to support immigrants settled there. Amnesty International argued that the United States was obligated under international law to ensure the prompt processing of asylees and described a humanitarian crisis in Mexico that they attributed to the policy at issue.
On July 29, 2019, the court partially granted the defendant's motion to dismiss the second amended complaint. Judge Bashant dismissed the APA § 706(1) claim and the claim that the Alien Tort Statute gave the court subject matter jurisdiction.
On September 26, 2019, the plaintiffs moved for provisional class certification to pursue preliminary injunctive relief for "all non-Mexican noncitizens who were denied access to the U.S. asylum process before July 16, 2019 as a result of the Government's metering policy and continue to seek access to the U.S. asylum process."
On November 19, 2019, Judge Bashant granted provisional class certification and a preliminary injunction for the plaintiffs. This order enjoined defendants from applying the Asylum Ban to members of the provisionally certified class and ordered them to return to pre-Asylum Ban practices for processing the asylum applications of members of the certified class. 2019 WL 6134601.
The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed an emergency motion to stay the order on December 4, 2019.
On December 20, 2019, Chief Circuit Judge Sidney R. Thomas and Circuit Judges Marsha S. Berzon and Daniel A. Bress granted an emergency stay pending the appeal in order to preserve the status quo and avoid complications at the border. However, the Ninth Circuit ultimately denied the government’s motion for a stay pending a decision on the merits on March 5, 2020, reasoning that the government did not carry its burden of demonstrating why a stay was warranted.
On December 20, 2020 the Ninth Circuit held the appeal in abeyance pending decisions in both East Bay Sanctuary Covenant v. Barr and Capital Area Immigrants Rights Coalition v. Trump. The court dismissed the appeal as moot on September 20, 2022, given that the government raised the same issues in another appeal. 2022 WL 15399693.
Back in the district court on December 6, 2019, the plaintiffs filed a motion for a temporary restraining order (“TRO”) seeking to prohibit defendants from applying a new rule, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act” (“ACA Rule”), to provisional class members. This rule added an exception to asylum in the Immigration and Nationality Act known as the “Safe third country” provision. The ACA Rule allowed the Attorney General to remove a non-citizen, otherwise eligible for asylum, to a country that the U.S. has entered into a bilateral or multilateral agreement with (a "third-party country"). At the time, the U.S. had recently entered into bilateral or multilateral agreements with El Salvador, Guatemala, and Honduras. The ACA Rule also created a bar that restricted “whether an alien may even apply for asylum” by establishing a screening mechanism to evaluate a noncitizen's likelihood of torture or persecution if removed to a third-party country. The plaintiffs alleged that the application of the ACA Rule and the subsequent removal of class members to third-party countries would result in irreparable injury.
On January 6, 2020, Judge Bashant declined to grant a TRO. The court concluded that the plaintiffs did not satisfy their burden for a TRO because they did not establish that the defendants were likely to apply the ACA Rule to the provisional class members.
On January 14, 2020, the plaintiffs moved for class certification. Plaintiffs sought certification of the following class: "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 plaintiffs also sought to certify a subclass of "all noncitizens who were or will be denied access to the 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." The court granted class certification on August 6, 2020.
In response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (“CDC”) issued an order (“Title 42 Order”) in March 2020 that effectively suspended the asylum process at land POEs along the U.S.-Mexico border.
On July 17, 2020, the plaintiffs asked the court to clarify that the preliminary injunction applied retroactively to asylum seekers whose claims were fully evaluated prior to the court's November 19 preliminary injunction. The court granted the plaintiff's motion for clarification on October 30, 2020. The government appealed on December 2, 2020. On December 18, 2020, the Ninth Circuit temporarily stayed the preliminary injunction pending a final decision on the motion to stay. The Ninth Circuit lifted the stay on January 14, 2021.
On September 4, 2020, the plaintiffs moved for summary judgment. The government cross-moved on September 25, 2020.
On January 6, 2021, the plaintiffs moved for a TRO regarding the defendants' "Final Transit Rule," which sought to circumvent the court's ruling that temporarily enjoined defendants from executing their metering policy. The court issued the TRO on January 18, 2021.
Following the government transition, the incoming Biden Administration jointly moved with the plaintiffs on January 22, 2021 to withdraw the motion to stay the order on the plaintiffs' motion to clarify. Further, the parties jointly moved to convert the January 18 TRO into a preliminary injunction on January 29, 2021. The court did so on February 1, 2021.
In May 2021, DHS established a limited “humanitarian exception” to the CDC’s Title 42 Order, which allowed “vulnerable individuals and family members” otherwise covered by the Title 42 Order to enter the United States. The plaintiffs contended that because DHS did not adequately publicize the humanitarian exception, many asylum seekers did not know that they could enter the United States under the exception. On June 17, 2021 the plaintiffs filed a motion to facilitate, asking the court to compel DHS’s assistance with class identification so that the plaintiffs could notify the class members about the humanitarian exception. The court denied the motion on March 8, 2022, holding that the plaintiffs’ request exceeded the court’s authority under Federal Rule of Procedure 23(d)(1)(B).
The plaintiffs moved for court oversight of preliminary injunction compliance on August 25, 2021.
On September 2, 2021, the court partially granted the plaintiffs' motion for summary judgment and the defendants' cross-motion for summary judgment. Judge Bashant granted summary judgment for the plaintiffs on the APA § 706(1) and Fifth Amendment due process claims, holding that the practice of turning back asylum seekers at POEs without inspecting and referring them upon arrival violated the defendants' statutory duties under the INA and the Due Process Clause. Because these turnbacks violated the constitution regardless of their purported justification, the court denied the APA § 706(2) claim as moot. Judge Bashant granted summary judgment for the defendants on the ultra vires and Alien Tort Statute claims. On the ultra vires claim, the court found that the APA's waiver of sovereign immunity applied. As for the Alien Tort Statute claim, there was no international norm that had risen to the level of being fundamental international law (jus cogens).
On November 1, 2021, the CBP Commissioner issued a memorandum instructing CBP personnel to increase capacity to process asylum seekers at POEs along the Southwest Border.
On December 8, 2021, the plaintiffs filed an ex parte application for emergency injunctive relief for one of the named plaintiffs. The court terminated the application as moot on December 21, 2021, because the government had agreed to provide the plaintiff with relief outside of court.
The court denied the plaintiffs’ August 25, 2021 motion for oversight without prejudice on March 16, 2022. Judge Bashant held that she would determine whether oversight was necessary once she issued a final decision on permanent injunctive relief.
On June 13, 2022, the Supreme Court of the United States issued an opinion in Garland v. Aleman Gonzalez regarding injunctive relief in class action immigration lawsuits. 596 U.S. 543. The defendants in this case filed a brief on June 29, 2022, arguing that the holding in Aleman Gonzalez barred the plaintiffs in this case from receiving injunctive relief. Specifically, the defendants cited Aleman Gonzalez for the proposition that this court lacked jurisdiction under 8 U.S.C. § 1252(f)(1) to issue the preliminary injunction.
On August 5, 2022, the court converted the preliminary injunction into a permanent injunction, partially granted the plaintiffs’ motions to modify the preliminary injunction, and denied the plaintiffs’ request for oversight. Judge Bashant rejected the government’s argument that Aleman Gonzalez barred the preliminary injunction, holding that the preliminary injunction in this case fit within a different line of Ninth Circuit precedent that Aleman Gonzalez did not foreclose: lower courts may enjoin the unlawful operation of a provision that is not specified in § 1252(f)(1), even if that injunction has some collateral effect on the operation of a covered provision. Here, the preliminary injunction did not interfere with one of § 1252(f)(1)’s covered provisions in a non-collateral way. The court denied the plaintiffs’ request to appoint Magistrate Judge Crawford as a special master, citing the government’s many efforts to comply with the preliminary injunction.
Judge Bashant also issued a remedies opinion on August 5, 2022. The court held that it would ordinarily grant injunctive relief to remedy the government’s APA and Fifth Amendment violations, but recognized that the Supreme Court’s decision in Aleman Gonzalez barred it from doing so. Judge Bashant found that any equitable relief would interfere with the “operation” of INA § 1225, and thus would violate § 1252(f)(1)’s remedy bar as interpreted by Aleman Gonzalez. Judge Bashant criticized the Aleman Gonzalez decision, describing it as a “sledgehammer to the premise that immigration enforcement agencies are bound to implement their mandatory ministerial duties,” and stating that the decision gave agencies “carte blanche to implement immigration enforcement policies that clearly are unauthorized by the statutes under which they operate.” Acknowledging that class-wide declaratory relief was “no substitute for a permanent injunction,” the court declared that the government’s actions in turning back asylum seekers constituted an unlawful withholding of the government’s mandatory ministerial inspection and referral duties under INA §§ 1158 and 1225, and thus violated the APA and the Fifth Amendment’s Due Process Clause.
On August 23, 2022, Judge Bashant entered a final judgment for the plaintiffs on the APA 5 U.S.C. § 706(1) and Fifth Amendment procedural due process claims, and for the defendants on the INA and Non-Refoulement Doctrine claims. Judge Bashant dismissed the APA 5 U.S.C. § 706(2) claim as moot. The court also (1) ordered the government to restore the status quo ante for the named plaintiffs; (2) declared unlawful the government’s denial of inspection or asylum processing to class members who have not been admitted or paroled, and who are in the process of arriving in the United States at Class A POEs; and (3) converted its prior preliminary injunction into a permanent injunction.
The government appealed the final judgment on October 21, 2022, and the plaintiffs filed a cross appeal on November 4, 2022.
The ACLU and other immigrant rights organizations filed amicus briefs in the Ninth Circuit on February 28, 2023. Circuit Judges John B. Owens, Michelle T. Friedland, and Ryan D. Nelson heard oral argument on November 28, 2023.
On December 6, 2023, the Ninth Circuit referred the parties for mediation and directed the parties to file supplemental briefs addressing the following issues:
The case is ongoing before the Ninth Circuit as of December 24, 2023.
Summary Authors
Joanna Kuzdra (1/25/2018)
Veronica Portillo Heap (3/22/2019)
Caitlin Kierum (11/22/2019)
Aaron Gurley (2/10/2020)
Lauren Yu (9/3/2021)
Sophia Acker (12/24/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6242774/parties/al-otro-lado-inc-v-mcaleenan/
Abascal, Manuel A. (California)
Attorney, Matthew H. (California)
Albun, Zachary Abraham (Massachusetts)
Amdur, Spencer Elijah (California)
Ardalan, Sabrineh (California)
Abascal, Manuel A. (California)
Attorney, Matthew H. (California)
Attorney, Ori Lev, (California)
Borroto, Gianna (District of Columbia)
Chakravartula, Neela O. (California)
Crow, Melissa E. (District of Columbia)
Director, Melissa E. (California)
Director, Baher Azmy, (California)
Fenn, Matthew Ellis (New York)
Housh, Kristin P. (California)
Laird, Michaela R. (California)
Lev, Ori (District of Columbia)
Marmolejo, Matthew H. (California)
Medlock, Stephen (District of Columbia)
Mohammadi, Faraz R. (California)
Murphy, Victoria (District of Columbia)
Parr, Allison (District of Columbia)
Reichlin-Melnick, Aaron (District of Columbia)
Shepherd, Kathryn E. (District of Columbia)
Attorney, OIL-DCS Trial (California)
Attorney, Katherine Shinners, (California)
Attorney, Alexander Halaska, (California)
Davila, Yamileth G. (District of Columbia)
Halaska, Alexander James (District of Columbia)
Kelly, Genevieve M. (District of Columbia)
Nazarov, Ari (District of Columbia)
Pratt, Sherease Rosalyn (District of Columbia)
Saeed, Sairah G. (District of Columbia)
Sampat, Dhruman Y. (District of Columbia)
Schuessler, Danielle K. (District of Columbia)
Shinners, Katherine J. (District of Columbia)
Stewart, Scott Grant (District of Columbia)
Ward, Brian (District of Columbia)
Albun, Zachary Abraham (Massachusetts)
Amdur, Spencer Elijah (California)
Ardalan, Sabrineh (California)
Benedetto, Matthew D. (California)
Frahn, Harrison [Buzz] (California)
Frahn, Harrison J. (California)
Kibler, Michael D. (California)
Manning, Susan Baker (District of Columbia)
Palma-Solana, Vilma (California)
See docket on RECAP: https://www.courtlistener.com/docket/6242774/al-otro-lado-inc-v-mcaleenan/
Last updated March 17, 2024, 3:02 a.m.
State / Territory: California
Case Type(s):
Special Collection(s):
Trump Immigration Enforcement Order Challenges
Key Dates
Filing Date: July 12, 2017
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Asylum seekers from Mexico and Honduras who were refused access to asylum screenings at ports of entry along the United States-Mexico border, and Al Otro Lado, Inc., a non-profit, non-partisan legal services organization serving indigent deportees, migrants, refugees and their families. All non-Mexican noncitizens who were denied access to the U.S. asylum process before July 16, 2019 as a result of the Government's metering policy and continue to seek access to the U.S. asylum process.
Plaintiff Type(s):
Non-profit NON-religious organization
Attorney Organizations:
Center for Constitutional Rights (CCR)
American Immigration Council's Legal Action Center
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Department of Homeland Security, Federal
U.S. Customs and Border Protection, Federal
U.S. Immigration and Customs Enforcement (ICE), Federal
Defendant Type(s):
Case Details
Causes of Action:
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Alien Tort Claims Act (ATCA), 28 U.S.C. §§ 1350
Constitutional Clause(s):
Due Process: Procedural Due Process
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Preliminary injunction / Temp. restraining order
Source of Relief:
Content of Injunction:
Issues
General/Misc.:
Immigration/Border: