Judge Certifies Class Action for Thousands of Asylum Seekers

People wait to apply for asylum in the United States along the border in Tijuana, Mexico, on July 16, 2019. (AP Photo/Gregory Bull)

SAN DIEGO (CN) — A federal judge Thursday paved the way for thousands of asylum seekers to challenge the Trump administration’s block to the immigration process at ports of entry along the U.S.-Mexico border by certifying a class action.

U.S. District Judge Cynthia Bashant, a Barack Obama appointee, issued an 18-page order Thursday certifying a class of thousands of asylum seekers who had presented themselves at ports of entry along the U.S.-Mexico border and were denied access to the asylum process by Customs and Border Protection officials from January 1, 2016, to the present.

The lawsuit, brought in 2016 by individual asylum seekers and legal nonprofit Al Otro Lado, alleges in May 2016 CBP agents began “metering” the number of asylum seekers allowed to enter the port of entry to begin the immigration process by claiming POEs were “at capacity.”

Thousands of people denied entry to the U.S. were put on unofficial waitlists kept in Mexican border towns and were essentially told to “wait their turn” before being able to begin the asylum process.

The asylum seekers claim the practice violates the Immigration and Nationality Act, Administrative Procedures Act, Alien Tort Statute and due process clause of the Fifth Amendment.

Bashant found while there may be nuances among the circumstances experienced by the individual class members when they were denied access to the asylum process, the alleged denial to the immigration process was the common factor which should be litigated through a class action, rather than individual lawsuits.

“Plaintiffs allege that CBP officers refused to process asylum seekers, an act which they claim is unlawful regardless of the grounds for the refusal. The officers’ refusal to process asylum seekers, therefore, is the generally applicable ground for class-wide relief,” Bashant wrote.

Mayer Brown attorney Stephen Medlock, who argued on behalf of the asylum seekers in a virtual hearing last week, said in a statement, “Today’s ruling is another meaningful step in holding [Department of Homeland Security] and CBP accountable for implementing a turnback policy that flagrantly violates the Immigration and Nationality Act.”

In her order, Bashant denied the federal government’s request the asylum seekers “turned back” at ports of entry for various reasons be categorized as a separate class action from those “metered” at ports of entry due to alleged capacity problems.

“Metering, like the other conduct alleged, is one way in which CBP officers turn asylum-seekers away from POEs instead of referring them to asylum officers for credible fear interviews,” Bashant wrote.

“The proposed class and subclass capture all individuals allegedly subject to some form of CBP conduct — metering or otherwise — that denied them access to this statutory process,” she added.

The Justice Department’s argument that the eight individual asylum seekers’ claims regarding why they were “turned back” to Mexico are too varying to determine commonality was also rejected by Bashant.

Because the different practices regarding “turnbacks” were all practiced by a single agency, CBP, and the agency’s action resulted in the refusal to inspect or process asylum seekers, the claims are sufficiently common for a class action, Bashant wrote.

“The different factual circumstances between each class member’s particular experience does not destroy commonality because there is still a common underlying legal question regarding whether each and every class member was illegally denied access to the asylum system because of defendants’ overarching policy,” Bashant wrote.

The Justice Department’s contention the class period could not start until the metering policy was formalized in a memorandum issued to CBP officials in April 2018 was also rejected by Bahant who noted the claims by asylum seekers prior to the formal memo were not “atypical simply because of their timing.”

“Plaintiffs have alleged, with citation to supporting evidence, that defendants began metering asylum seekers at the San Ysidro POE in 2016 and that the metering policy adopted in 2018 was merely a formalization of this process,” Bashant wrote.

An email request for comment was not immediately returned by the Department of Justice.

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