https://drive.google.com/file/d/12R1mt07Z4S7R7xiieRUznueR9DRXrBdq/view?usp=sharing
Al Otro Lado v. Mayorkas
U.S. District Judge Cynthia Bashant minces no words in blasting both the unlawful, cruel, and unconstitutional policy and the Supreme’s toxic decision to look the other way as immigration enforcement runs roughshod over legal, constitutional, and human rights.
In its September 2, 2021 decision, this Court held the right to access the U.S. asylum
process conferred vis a vis § 1158(a)(1) applies extraterritorially to noncitizens who are
arriving at Class A POEs along the U.S.-Mexico border, but who are not yet within the
jurisdiction of the United States, and is of a constitutional dimension. (Op. Granting in
Part and Denying in Part Parties’ Cross-Mots. for Summ. J. (“MSJ Opinion”), ECF No.
742.) It further held that Defendants’ systematic turnbacks of asylum seekers arriving at
Class A POEs (the “Turnback Policy”) amounted to an unlawful withholding by
immigration officials of their mandatory ministerial “inspection and referral duties”
detailed in 8 U.S.C. § 1225 (“§ 1225”), in violation of the Administrative Procedures Act,
5 U.S.C. § 706(1) et seq., and the Fifth Amendment Due Process Clause. (MSJ Opinion at
33–34, 37–38); see 8 U.S.C. §§ 1225(a)(3) (mapping out immigration officials’ duty to
inspect asylum seekers), 1225(b)(1)(A)(ii) (mapping out immigration officials’ duty to
refer asylum seekers to the U.S-asylum process).
In casting appropriate equitable relief to rectify the irreparable injury Defendants’
unauthorized and constitutionally violative Turnback Policy has inflicted upon members
of the Plaintiff class,2 this Court ordinarily would be guided by the fundamental principle
that an equitable remedy should be commensurate with the violations it is designed to
vindicate. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 (1979) (“[It is an]
accepted rule that the remedy imposed by a court of equity should be commensurate with
the violation ascertained.”). Equitable relief should leave no stone unturned: it should
correct entirely the violations it is aimed at vindicating. That cornerstone of Article III
courts’ equitable powers generally is unfaltering, whether the party against whom an
injunction is sought is a private entity, a state actor, or, as here, a federal official. Thus, in
2 Plaintiffs consist of the named Plaintiffs listed in the case caption, along with a certified class
consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting
themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S.
asylum process by or at the instruction of [Customs and Border Protection] officials on or after January 1,
2016.” (Class Certification Order at 18, ECF No. 513.) The Court also certified a subclass consisting of
“all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the
U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.” (Id.)
– 3 – 17cv2366
the ordinary course of things, this Court would not hesitate to issue broad, programmatic
relief enjoining Defendants from now, or in the future, turning back asylum seekers in the
process of arriving at Class A POEs, absent a valid statutory basis for doing so.
Yet the circumstances with which this Court is presented are not ordinary because
of the extraordinary, intervening decision of the United States Supreme Court in Garland
v. Aleman Gonzalez, 142 S. Ct. 2057 (2022). That decision takes a sledgehammer to the
premise that immigration enforcement agencies are bound to implement their mandatory
ministerial duties prescribed by Congress, including their obligation to inspect and refer
arriving noncitizens for asylum, and that, when immigration enforcement agencies deviate
from those duties, lower courts have authority to issue equitable relief to enjoin the
resulting violations. It does so through unprecedented expansion of a provision of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1989 (“IIRIRA”), 8
U.S.C. § 1252(f)(1) et seq. (“§ 1252(f)(1)”), which for years the Ninth Circuit has
interpreted as placing a relatively narrow limit on injunctive relief. In essence, Aleman
Gonzalez holds that § 1252(f)(1) prohibits lower courts from issuing class-wide injunctions
that “require officials to take actions that (in the Government’s view) are not required” by
certain removal statutes, including § 1225, or “to refrain from actions that (again in the
Government’s view) are allowed” by those same provisions. Id., 142 S. Ct. at 2065.
Federal courts (except for the Supreme Court) now may only issue injunctions enjoining
federal officials’ unauthorized implementation of the removal statutes in the individual
cases of noncitizens against whom removal proceedings have been initiated. See id.
In no uncertain terms, the logical extension of Aleman Gonzalez appears to bestow
immigration enforcement agencies carte blanche to implement immigration enforcement
policies that clearly are unauthorized by the statutes under which they operate because the
Government need only claim authority to implement to immunize itself from the federal
judiciary’s oversight.
With acknowledgment that its decision will further contribute to the human suffering
of asylum seekers enduring squalid and dangerous conditions in Mexican border
– 4 – 17cv2366
communities as they await entry to POEs, this Court finds the shadow of Aleman Gonzalez
inescapable in this case. Even the most narrow, meaningful equitable relief would have
the effect of interfering with the “operation” of § 1225, as that term is construed by the
Aleman Gonzalez Court, and, thus, would clash with § 1252(f)(1)’s remedy bar. Aleman
Gonzalez not only renders uneconomical vindication of Plaintiff class members’
statutorily- and constitutionally-protected right to apply for asylum, those inefficiencies
inevitably will lead to innumerable instances in which Plaintiff class members will be
unable to vindicate their rights at all. Thus, while the majority and dissent in Aleman
Gonzalez hash out their textual disagreements concerning § 1252(f)(1)’s scope in terms of
remedies, make no mistake, Aleman Gonzalez leaves largely unrestrained immigration
enforcement agencies to rapaciously scale back rights. See Tracy A. Thomas, Ubi Jus, Ibi
Remedium: The Fundamental Right to a Remedy Under Due Process, 41 San Diego L.
Rev. 1633, 1634 (2004) (“Disputes over remedies provide a convenient way for dissenters
to resist conformance to legal guarantees. Courts can declare rights, but then default in the
remedy to avoid a politically unpopular result.” (footnote omitted)).
Although it is no substitute for a permanent injunction, class-wide declaratory relief
is both available and warranted here. In lieu of even a circumscribed injunction enjoining
Defendants from again implementing a policy under which they turn back asylum seekers
presenting themselves at POEs along the U.S.-Mexico border, the Court enters a
declaration in accordance with its MSJ Opinion that turning back asylum seekers
constitutes both an unlawful withholding of Defendants’ mandatory ministerial inspection
and referral duties under § 1158 and § 1225 in violation of both the APA and the Fifth
Amendment Due Process Clause. The Court also issues relief as necessary to named
Plaintiff Beatrice Doe.
. . . .
You can read Judge Bashant’s full opinion at the link.
Meanwhile, Secretary Mayorkas exercised the authority recognized by the Supremes in Biden v. Texas to terminate the reprehensible and illegal “Remain in Mexico” (a/k/a “Let ‘Em Die in Mexico”) program engineered by Trump and Miller. Predictably, the same scofflaw, restrictionist “Red AG’s” who had instituted frivolous litigation to block this long overdue action filed more specious objections with the Trump-appointed US District Judge, as advocacy groups like Justice Action Center (“JAC”) pledged to fight the racist right until this vile (and highly ineffective) program is finally ended.
JAC Responds to Official Termination of Remain in Mexico, Attempts by Texas to Delay Wind-Down
FOR IMMEDIATE RELEASE
August 9, 2022
WASHINGTON, D.C. — In a victory for immigrants’ rights movement, the Remain in Mexico program has been officially terminated after court proceedings following the Supreme Court’s ruling in Biden v. Texas on June 30. Below is a statement from Justice Action Center founder and director Karen Tumlin:
“The official end to shameful Remain in Mexico program is a victory for the immigrants’ rights movement and the right to asylum. RMX is a stain on the country’s history, having harmed tens of thousands of people fleeing for their lives since the Trump Administration instituted the unlawful and immoral program in 2019.
“Since the Supreme Court’s ruling affirming the authority of the Biden Administration to end the RMX program, the #SafeNotStranded campaign has called on the President and DHS to implement a swift and humane wind-down, including halting all new enrollments and allowing everyone in RMX to safely pursue their asylum claims in the U.S. Yesterday, DHS stated its wind-down has begun and new people will not be enrolled in the program, and that it would disenroll individuals with upcoming RMX hearings. These are important first steps to finally redress just some of the immense harm inflicted by the program.
“This commitment by DHS, following such a significant SCOTUS victory, illustrates the strength and resilience of the immigrants’ rights movement. But even after a clear loss, Texas is continuing its hateful attempts to keep this deadly program in place for as long as possible: After the District Court rightfully vacated its injunction of the RMX wind-down yesterday, Texas unfortunately—yet unsurprisingly—filed an amended complaint challenging the second DHS memo rescinding RMX, as well as a motion asking the District Court to stay the memo’s effective date.
“But we will not be deterred: advocates will continue to fight back against ongoing red state efforts to continue Trump’s racist and xenophobic agenda and work towards a world where all people fleeing danger can be safe, not stranded.”
# # #
Contact: Tasha Moro; 323-450-7269; tasha.moro@justiceactioncenter.org
Justice Action Center (JAC) is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. JAC is committed to bringing additional litigation resources to address unmet needs, empower clients, and change the corrosive narrative around immigrants in the U.S. Learn more at justiceactioncenter.org and follow us on Twitter, Instagram, and Facebook.
Related:
6/30/22: Justice Action Center Welcomes Positive Supreme Court Decision on Remain in Mexico in Biden v. Texas
3/21/22: #SafeNotStranded Campaign Launches Ahead of April Supreme Court Arguments in Biden v. Texas
*******************************
We should remember that the Trumpest GOP’s insurrectionist war on American democracy and attack on truth and human decency began with overt lies and racist attacks on migrants of color and non-Christians. It has escalated to become an all out assault on our future as a nation of laws and values.
We can’t go back to a time when liberals and progressives viewed immigration as a tangental or secondary issue. It is THE all-encompassing issue now in preserving American democracy from GOP efforts to destabilize and destroy our nation’s fabric from bottom to top!
🇺🇸Due Process Forever!
PWS
08-11-22
