On November 20, 2018, a group of asylum seekers challenged the federal government’s latest asylum policy, which prohibited people who enter the United States along the southern border somewhere other than a designated port of entry from obtaining asylum. Specifically, the plaintiffs challenged an interim final rule promulgated on November 9, 2018, declaring all those subject to a presidential proclamation concerning the southern border ineligible for asylum, as well as the “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States” signed the same day blocking the entry of all people entering the United States without inspection at the southern border. The plaintiffs alleged violations of the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), and the William Wilberforce Trafficking Victims Protection Act. Represented by the National Immigrant Justice Center, Human Rights First, and private counsel, they sought declaratory and injunctive relief. The case was filed in the United States District Court for the District of Columbia, and assigned to Magistrate Judge Randolph D. Moss.
The plaintiffs were six non-citizens who entered the United States seeking asylum. Two were a father and daughter who fled Honduras to escape a gang threatening to kill them, fearing the local police would not be willing to protect them. Another fled from Mexico, seeking safety from her gang-affiliated partner who repeatedly beat her and threatened to kill her. A fourth plaintiff was an unaccompanied minor from Honduras who sought to escape a credible fear of murder from his father—a police officer who abused him—and from a gang that the plaintiff refused to join on moral grounds. Another two plaintiffs were a mother and her son from Honduras seeking asylum to escape the violence and threat of death posed by her husband. None had been granted asylum.
The plaintiffs argued that federal law allowed non-citizens to seek asylum regardless of their immigration status or how they entered the United States. Further, federal law established procedural safeguards that aimed to give asylum seekers a fair review process during removal proceedings. The plaintiffs also argued that under treaty obligations, the United States could not deny asylum on the basis of where the non-citizen entered the country. But the government’s new rule, part of its broader “zero-tolerance” policy on immigration, “shutters access to the asylum system for thousands of men, women, and children that the Administration concedes are likely to have meritorious asylum claims.” Faced with even longer wait times at the border, the complaint argued, asylum seekers already in dangerous situations and with scarce financial resources were thus left seriously vulnerable to violence from criminal organizations near the border.
At the same time the complaint was filed, the plaintiffs filed a motion for a temporary restraining order, to be followed by a preliminary injunction enjoining implementation and enforcement of the rule and the proclamation.
The Office of the United Nations High Commissioner for Refugees filed an amicus brief in support of the plaintiffs, as did a group of seven United States Senators.
On December 17, 2018, the court held a hearing on the plaintiffs’ motion for a temporary restraining order and preliminary injunction, and consolidated the case with
S.M.S.R. v. Trump, designating this case as the lead case. On December 21, the court decided to hold the motion in abeyance.
On December 18, 2018, the
S.M.S.R. v. Trump plaintiffs filed an amended complaint listing seven additional asylum seekers as plaintiffs. At the same time, the plaintiffs in this case also filed an amended complaint seeking certification of a class consisting of all persons who had crossed the southern border since November 10, 2018, and had either gone into hiding to avoid detection, presented outside a port of entry and been detained, or presented and been released pending further immigration proceedings.
On December 26, 2018, the defendants filed a motion to stay all briefing deadlines in light of the lapse in appropriations to the Department of Justice caused by the federal government shutdown. The court, however, denied this motion.
On January 4, 2019, the plaintiffs in both cases filed motions for summary judgment and class certification. The defendants filed a cross motion for summary judgment on February 25, 2019. Oral argument on these pending motions was scheduled for May 29, 2019.
On August 2, 2019, the court granted in part the plaintiffs’ summary judgment and class certification motions, denied the defendants’ motion for summary judgment, and denied as moot the plaintiffs’ earlier motion for a temporary restraining order. The court held that the rule challenged by the plaintiffs was “unlawful” within the meaning of the Administrative Procedure Act. The court also found both the plaintiffs’ argument for an injunction and the defendants’ argument against the injunction unpersuasive; as a practical matter, it would be impossible to vacate the challenged rule with respect to the organizational plaintiffs without vacating the entire rule. As such, the court agreed to vacate the rule but declined the plaintiffs’ request to enforce the requested injunction. As to the class certification, the court found that, here, the class certification requirements of numerosity, commonality, typicality, and adequacy of representation were met. 404 F.Supp.3d 109.
On September 30, 2019, the defendants appealed the case (D.C. Circuit docket number 19-5272); as of August 2020, the case is ongoing.
Virginia Weeks - 11/28/2018
Eva Richardson - 05/22/2019
Bogyung Lim - 08/14/2020
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