Al Otro Lado, Inc. v. Mayorkas

Decision Date02 September 2021
Docket Number17-cv-02366-BAS-KSC
CourtU.S. District Court — Southern District of California
PartiesAL OTRO LADO, INC.; ABIGAIL DOE, BEATRICE DOE, CAROLINA DOE, DINORA DOE, INGRID DOE, ROBERTO DOE, MARIA DOE, JUAN DOE, VICTORIA DOE, BIANCA DOE, EMILIANA DOE, AND CÉSAR DOE, individually and on behalf of all others similarly situated, Plaintiffs, v. ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security, in his official capacity; TROY A. MILLER, Acting Commissioner, U.S. Customs and B Protection, in his official capacity; WILLIAM A. FERRERA, Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in his official capacity, Defendants.[1]
ORDER

(1) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (ECF NO 535);

(2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT (ECF NO. 563); AND

(3) REQUIRING SUPPLEMENTAL BRIEFING

HON CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE

This action challenges the lawfulness of the Government's practice of systematically denying asylum seekers access to the asylum process at ports of entry (“POEs”) along the U.S.-Mexico border. Plaintiffs allege that in violation of existing statutory, constitutional, and international law, Customs and Border Protection (“CBP”) officers do not inspect asylum seekers when they arrive at POEs and refer them for asylum interviews but instead turn them back to Mexico on the basis that the ports are “at capacity[.][2], [3] (Second Am. Compl. (“SAC”) ¶ 13, ECF No. 189.)

Now before the Court are the parties' respective summary judgment motions. (Pls.' Mot. for Summ. J. (“Pls.' MSJ”), ECF No. 535; Defs.' Cross-Mot. for Summ. J. and Opp'n to Pls.' Mot. for Summ. J. (“Defs.' MSJ”), ECF No. 563.) For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for Summary Judgment and GRANTS IN PART AND DENIES IN PART Defendants' Cross-Motion for Summary Judgment.

STATEMENT OF FACTS
I. Factual Background[4]
A. Overview of CBP

CBP, a component agency of the Department of Homeland Security (DHS), is tasked with monitoring the flow of people and goods across United States borders. (JSUF ¶ 1.) The Office of Field Operations (OFO), a division of CBP, is responsible for the management of operations at POEs in the United States. (JSUF ¶ 4.) OFO operates various different classes of POEs. (JSUF ¶ 5.) Relevant here is a “Class A” land POE, designated for all aliens. (Id.) Class A POEs on the U.S.-Mexico border include, among others: San Ysidro, Otay Mesa, Calexico, Nogales, El Paso, Laredo, Hidalgo, and Brownsville. (JSUF ¶ 8.) These POEs are overseen by four regional field offices: San Diego, Tucson, El Paso, and Laredo. (JSUF ¶ 7.)

B. First Use of Metering in 2016

Before metering was implemented in 2016, migrants seeking asylum who lacked documents for lawful entry would queue between the limit line[5] at a POE and the primary inspection booths to wait until there was sufficient space for their intake. (JSUF ¶ 49.)

Beginning in February 2016, CBP saw an increase in the number of inadmissible Haitian nationals seeking admission at San Diego POEs. (JSUF ¶ 31.) CBP had both border-wide and port-specific “contingency plans” in place for the purpose of responding to such “mass migration events.” (JSUF ¶¶ 28-29, 191.) In response to the increase in Haitian migration in 2016, the San Ysidro POE converted spaces to create more temporary holding rooms, increased its staffing, and took other measures to increase capacity consistent with the contingency plans in place. (JSUF ¶¶ 35-39, 40-41, 44-47, 55-58.) No contingency plan includes metering or queue management as a tactic for managing port capacity constraints during a period of high-volume arrivals. (Id.) However, in 2016, San Ysidro port officials began to stop migrants at the limit line outside the POE to prevent them from entering the port building and coordinated with the Government of Mexico to “meter” asylum seekers at the San Diego POEs “due to facility and processing constraints.” (JSUF ¶¶ 66-69, 70, 86-87.)

The high volume of migration continued into the fall of 2016, spread east, and included more family units (“FAMUs”) and unaccompanied alien children (“UAC”) in addition to the Haitian nationals. (JSUF ¶ 76.) Ports reported challenges with managing the number of people in custody. (JSUF ¶¶ 94-95, 105-07.) CBP officials were informed that their counterparts in Mexico were under pressure for assisting with processing of asylum seekers because of the “local humanitarian crisis” developing in border towns. (JSUF ¶ 81.) After Hurricane Matthew struck in October 2016, the number of arrivals increased. (JSUF ¶¶ 96-97.) DHS, with the assistance of MCAT, [6] developed a multi-phased plan to “address the surge of migration along the Southwest border, ” including constructing “soft-sided holding facilities” to increase capacity. (JSUF ¶¶ 116, 121-22, 125-26, 128.)

The presidential election was held on November 8, 2016. (JSUF ¶ 133.) On November 9, 2016, some soft-sided facilities were put on hold. (JSUF ¶¶ 134, 151.) Shortly after, then-CBP Deputy Commissioner Kevin McAleenan attended a meeting at DHS where he discussed increasing “efforts to meter arrivals of non-UAC, non-Mexican CF [credible fear] cases mid-bridge.” (JSUF ¶ 140.) Then-DHS Secretary Jeh Johnson approved the proposal to increase metering on November 10, 2016. (JSUF ¶ 141.) Soft-sided facilities were ultimately scrapped or put on stand-by. (JSUF ¶¶ 134, 151, 170-71.)

Metering was then adopted by POEs, although the way in which it was implemented varied. (JSUF ¶¶ 142-44.) At some ports, officers were stationed too far from the limit line and consequently turned back asylum seekers on U.S. soil. (JSUF ¶¶ 157, 159, 160, 162-63, 166-67.) There were also differences in approach, with some ports verbally providing “return” appointments to asylum seekers while others advised them only “to come back at a later time.” (JSUF ¶¶ 164-65.) Officials at Laredo noticed that the so-called “turnbacks” were having a strong enough deterrent effect that constant metering was not necessary. (JSUF ¶ 165.)

The levels of migration ebbed and flowed in the following 16 months. In December 2016, the number of inadmissible arrivals presenting at POEs on the southwest border decreased. (JSUF ¶ 168.) In a 2017 report, the Office of the Inspector General (“OIG”) stated that the “surge of migrants arriving on the Southwest border in 2016 “abruptly, drastically, and unexpectedly ended” in January 2017. (JSUF ¶ 169.) Nonetheless, some ports continued to meter in December 2017. (JSUF ¶¶ 193-98.) In 2018, the migration numbers again began to increase and peaked in the spring. (JSUF ¶ 199.) However, a “migrant caravan” reportedly making its way from Guatemala quickly dwindled and did not have an impact on port operations. (JSUF ¶¶ 206-12, 214-17, 223, 227.) One CBP officer in 2018 noted that metering “deterred [other than Mexican] traffic.” (JSUF ¶ 235.)

C. The Memorialization of Metering/Queue Management

On April 27, 2018, the then-Executive Assistant Commissioner of the OFO, Todd Owen, issued a memorandum with the subject line “Metering Guidance to the Directors of Field Operations [‘DFOs'] overseeing operations at POEs on the U.S.-Mexico border.” (JSUF ¶ 228.) In the memorandum, Owen wrote, in part:

When necessary or appropriate to facilitate orderly processing and maintain the security of the port and safe and sanitary conditions for the traveling public, DFOs may elect to meter the flow of travelers at the land border to take into account the port's processing capacity. Depending on port configuration and operating conditions, DFOs may establish and operate physical access controls at the borderline, including as close to the U.S.Mexico border as operationally feasible. DFOs may not create a line specifically for asylum-seekers only, but could, for instance, create lines based on legitimate operational needs, such as lines for those with appropriate travel documents and those without such documents.
Ports should inform the waiting travelers that processing at the port is currently at capacity and CBP is permitting travelers to enter the port once there is sufficient space and resources to process them. At no point may an officer discourage a traveler from waiting to be processed, claiming fear of return, or seeking any other protection. . . . Once a traveler is in the United States, he or she must be fully processed.

(Id.; see also “Metering Guidance, ” Ex. 82 to Decl. of Stephen Medlock in supp. of Pls.' MSJ (“Medlock Decl.”), ECF No. 535-84.) The guidance was disseminated to other executives as “processing guidance for surge events.” (JSUF ¶ 230.)

In May 2018, DHS made its position on metering publicly known. The DHS Secretary at the time, Kirstjen Nielsen, publicly stated: We are ‘metering,' which means that if we don't have the resources to let them in on a particular day, they are going to have to come back.” (JSUF ¶ 238.) Around this time, CBP officials responded to DHS's requests for information regarding the number of people likely to be turned away under a full implementation of the metering policy. (JSUF ¶¶ 239-43.)

Shortly thereafter, in June 2018, Nielsen issued a “Prioritization-Based Queue Management” (“PBQM”) memorandum to the CBP Commissioner. (JSUF ¶ 244; see also “Prioritization-Based Queue Management, ” Ex. 3 to Decl. of Alexander Halaska in supp. of Defs.' MSJ, ECF No. 563-5.) In the memorandum, Nielsen explained that apprehensions between POEs and arrivals at POEs of inadmissible migrants “continue to rise, ” but “CBP's resources remain strained along the Southwest Border.” (Id.) Specifically, she noted that inadmissible...

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