Al Otro Lado, Corp. v. Wolf

952 F.3d 999

AL OTRO LADO, a California corporation; Abigail Doe; Beatrice Doe; Carolina Doe; Dinora Doe; Ingrid Doe; Jose Doe; Ursula Doe; Victoria Doe; Bianca Doe; Juan Doe; Roberto Doe; Cesar Doe; Maria Doe ; Emiliana Doe, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,

v.Chad F. WOLF, Acting Secretary, U.S. Department of Homeland Security; Mark A. Morgan, Acting Commissioner of U.S. Customs and Border Protection; Todd C. Owen, Executive Assistant Commissioner, Office of Field Operations, United States Customs and Border Protection, in his official capacity, Defendants-Appellants.

No. 19-56417

United States Court of Appeals, Ninth Circuit.

FILED MARCH 5, 2020

ORDER

BERZON, Circuit Judge:

Plaintiff Al Otro Lado is an organization dedicated to helping individuals seek asylum in the United States. Along with thirteen Individual Plaintiffs (collectively, "Al Otro Lado"), Al Otro Lado originally challenged in this case the government's policy of turning back asylum seekers at ports of entry on the southern border and telling them to return later to file for asylum, a policy the government refers to as "metering." Al Otro Lado's complaint alleges that asylum seekers are turned back to deter and discourage individuals from seeking access to the asylum process, and not, as the government maintains, because each port of entry lacks capacity to process additional asylum seekers.

The current motion does not directly concern the validity of the policy requiring asylum seekers to wait at or near the border for some time before their asylum applications can be filed and processed. Rather, this motion stems from the impact of a separate regulation, promulgated while this litigation was pending, on a subgroup of metered asylum seekers. That regulation, known variously as the "Third Country Transit Rule," "transit rule," and "asylum ban," ("the Rule"), provides, subject to narrow exceptions, that a noncitizen who "enters, attempts to enter, or arrives in the United States" at the southern border on or after July 16, 2019 is not eligible for asylum in the United States unless they applied for asylum in another country, such as Mexico, that they passed through on their way to the southern border. 8 C.F.R. § 208.13(c)(4).

The district court granted a preliminary injunction enjoining enforcement of the Rule against a provisionally certified class of plaintiffs who arrived at the southern border seeking asylum before July 16, 2019 but were denied entry and prevented from making an asylum claim under the metering policy. The government appealed and moved this court for a stay of the injunction pending appeal. Because the government has not carried its burden of showing that a stay is warranted, we deny the motion.

I.

Al Otro Lado's putative class action complaint alleges that Customs and Border Protection ("CBP") uses various unlawful tactics systematically to deny asylum seekers access to the asylum process at Ports of Entry ("POEs") on the southern border. The complaint challenges the Government's so-called "Turnback Policy," which includes a "metering" or "waitlist" system. Under that system, the complaint alleges, asylum seekers who arrive at or near the southern border of the United States are instructed "to wait on the bridge, in the pre-inspection area, or at a shelter," or are simply told that "they [could not] be processed because the POE is ‘full’ or ‘at capacity.’ " According to the complaint and Al Otro Lado's expert, under the government's current metering practices, "[w]hen a pedestrian approaches the U.S.-Mexico dividing line" without valid entry documents, CBP officers standing on the international line "often physically block their passage into U.S. territory by standing in the center of the pedestrian walkway."

Al Otro Lado introduced declarations in which asylum seekers from a diverse set of countries and circumstances reported that they were turned away from the border under this metering policy and told to wait for an opportunity to submit their applications for asylum. Members of the provisionally certified class include Roberto Doe, who fled Nicaragua after the police threatened to kill him and burn down his business for participating in a strike against the government; M.G., a Cuban citizen seeking asylum because he was threatened and punched in the mouth by a political official for calling his government corrupt; and Jordan Doe, who fled Cameroon after his father was burned to death and he was imprisoned and tortured by military officers who accused him of being a separatist. They and the approximately 26,000 other members of the provisionally certified class approached the border to present themselves before July 16, 2019 because they "wanted to do things the right way," but were turned away.

The government does not now keep records of the people CPB officers turn back.¹ But other groups, with the United States government's knowledge and cooperation, have created waitlists. The district court determined that "[d]efendants do not ... challenge[ ] that Grupo Beta, a service run by the Mexican Government's National Institute of Migration, maintains a formalized list of asylum-seekers, communicates with CBP regarding POE capacity, and transports asylum-seekers from the top of the list to CBP." The record also shows that non-profit groups, shelters, and small groups of asylum seekers maintain informal waitlists in different locations. At each POE, CBP asks the list-keeper in the area for a certain number of people each day based on the POE's alleged capacity, and the group then calls the appropriate number of people from the top of its list. The district court concluded that "CBP relied on these lists to facilitate the process of metering," and the record supports that conclusion.

On July 16, 2019, the Department of Homeland Security and the Department of Justice issued a joint interim final rule entitled " Asylum Eligibility and Procedural Modifications." 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. § 208.13(c)(4). In relevant part, the Rule provides:

(c) Mandatory denials—

(4) Additional limitation on eligibility for asylum. Notwithstanding the provisions of § 208.15, any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum unless:

(i) The alien demonstrates that he or she applied for protection from persecution or torture in at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country.

8 C.F.R. § 208.13(c)(4).²

Al Otro Lado moved for a preliminary injunction to prevent enforcement of the Rule against provisional class members. It argued that if the Rule is applied to non-Mexican asylum seekers metered at the border before July 16, 2019, the Rule will long delay their ability to apply for asylum in the United States and, for a large proportion of the class members, could preclude them from accessing any asylum process altogether. This assertion has support in the record. As the district court recognized, "Mexico's Commission to Assist Refugees, the administrative agency responsible for processing asylum claims, requires that applicants for asylum submit their petitions within 30 days of entering Mexico." The district court then summarized the bleak result for plaintiffs:

[B]ecause the [Rule] was not promulgated until after the time these individuals were subject to metering, none of the members of the putative class attempted to exhaust Mexico's asylum procedures within the 30-day window. In short, should the [Rule] apply to these individuals, the situation would effectively be this: Based on representations of the Government they need only "wait in line" to access the asylum process in the United States, the members of the putative class may have not filed an asylum petition in Mexico within 30 days of entry, thus unintentionally and irrevocably relinquishing their right to claim asylum in Mexico and, due to the [Rule], their right to claim asylum in the United States.³

Although it is possible to seek a waiver of Mexico's 30-day bar, Al Otro Lado maintains that "it is nearly impossible to do so without legal counsel," which most asylum seekers cannot afford. Additionally, even if a waiver is granted, according to evidence submitted by Al Otro Lado, it often takes two years for a Mexican asylum claim to be fully adjudicated.

On November 19, 2019, the district court provisionally certified for purposes of a preliminary injunction 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 Government's metering policy, and who continue to seek access to the U.S. asylum process."⁴ It granted a preliminary injunction, ordering that "Defendants are hereby enjoined from applying the Asylum Ban to members of the aforementioned provisionally certified class and ordered to return to the pre-Asylum Ban practices for processing the asylum applications of members of the certified class."

On December 4, 2019, the government appealed the order granting the injunction, and asked the district court to stay the preliminary injunction pending appeal. The government simultaneously moved to expedite briefing on its stay motion. The district court denied the motion to expedite briefing and set a hearing on the briefing schedule for the stay motion for January 3, 2020, so the motion would not be decided before then.

Rather than wait for the district court's ruling on the stay motion, the government moved this court for a stay...