Judge Considers Certifying Class Action of Thousands of Asylum Seekers

Migrants from Mexico get a lift to a local migrant shelter. (Courthouse News photo/ Brad Poole)

SAN DIEGO (CN) — Comparing a proposed class action by asylum seekers challenging the federal government’s denial of access to the immigration process to cases by prisoners challenging their denial of medical care, a federal judge Thursday appeared poised to approve the action, which could provide relief to thousands of immigrants.

U.S. District Judge Cynthia Bashant, a Barack Obama appointee, noted at the outset of the class certification hearing in Al Otro Lado v. McAleenan she had issued a tentative ruling finding the class action brought by asylum seekers allegedly denied access to the immigration process along ports of entry at the U.S.-Mexico border should be certified.

The asylum seekers, of which their attorneys estimate could include upwards of 26,000 immigrants, have been handed a series of court victories by Bashant and the Ninth Circuit during the litigation the past year.

They claim beginning at the San Ysidro Port of Entry in San Diego in May 2016 – when an influx of Haitian asylum seekers displaced years earlier by an earthquake began to show up at the U.S.-Mexico border — Customs and Border Protection agents began “metering” the number of asylum seekers allowed to enter the port of entry to begin the immigration process.

Those who didn’t make the cut were “turned back” to Tijuana, Mexico where they were put on informal waitlists and given a number to “wait their turn” before being able to begin the asylum process in the U.S.

The informal “metering” or “turnback” policy was later expanded to ports of entry along the southern border until it was formalized in an April 2018 federal memorandum.

Justice Department attorney Alexander Halaska told Bashant Thursday the class action claims could not constitute “common questions” regarding each asylum seeker’s experience with the metering process necessary to litigate a class action.

He suggested there are too many individualized or “commonality” factors which would need to be litigated on a case-by-case basis.

“There needs to be an individualized examination of what was going on with each applicant’s experience at the port of entry,” Halaska said.

“They have not shown alleged misrepresentations, threats, verbal and physical abuse are common to the class-wide policy,” he added, disputing the eight declarations submitted in support of the class certification motion, including from two whistleblowers, was enough evidence to approve the class action.

Halaska also argued that because the metering memos gave field office leaders discretion to implement the turnback policy, they could only be considered “guideposts,” not across-the-board standards.

But Bashant pointed out the asylum seekers “are taking on a fairly large burden” which they will have to prove at a jury trial.

“That really is the question in this case: Did the defendants systematically deny class members access to the asylum process illegally?” Bashant said, in comparing the case and relief sought to class actions brought by prisoners who claimed they were denied medical care while incarcerated.

Mayer Brown attorney Stephen Medlock, representing the asylum seekers, said the fact the metering policy which turned back asylum seekers at ports of entry wasn’t memorialized in a government memo until April 2018 shouldn’t have any bearing on the relevant time period for the class action, which he said should start when the practice first began, in May 2016.

“Whether the practice is legal, and in fact occurred, are common questions that can be asked on a class-wide basis,” Medlock said.

“The question is not ‘Why was I delayed?’ it is ‘Was I delayed, and did it violate the law,’” he added.

Medlock disputed the whistleblower deposition testimony could not show the metering practice and handling of asylum seekers was consistent across state lines. He said the two field office employees “corroborated each other’s experience.”

“At this stage we have a mountain of evidence showing the turnback policy existed,” Medlock said.

“It has always been the case plaintiffs have argued turnbacks are illegal, full stop, regardless of the justification for them,” he added.

Bashant took the matter under submission and will issue a written order.

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