Pursuant to the Department of Homeland Security (“DHS”)’s former so-called Migrant Protection Protocols (“MPP” or “Remain in Mexico”) tens of thousands of asylum-seeking individuals and families were forced to wait in precarious conditions in Mexican border cities while their asylum cases were adjudicated in the United States. Unsurprisingly, in addition to the harm that caused them to flee their home countries, these individuals and families regularly faced additional danger and threats to their lives in Mexico. Under MPP, the only way that people could seek protection from the harm they faced in Mexico was to submit to nonrefoulement interviews, which adjudicated whether their fear of harm amounted to fear of persecution or torture such that they should be removed from the program and allowed to pursue their asylum claims from within the United States.

The outcomes of life-or-death nonrefoulement interviews turn on complex factual and legal issues. Yet, prior to this lawsuit, Customs and Border Protection, including Border Patrol, detained families awaiting nonrefoulement interviews in appalling conditions and refused to allow them to talk with their lawyers before the interviews and refused to allow lawyers to participate in the interviews.

On November 5, 2019, we filed a class action to challenge this practice. We argued the systemic denial of access to retained counsel prior to and during nonrefoulement interviews violated our plaintiffs’ and class members’ statutory and constitutional rights to substantive due process.

On November 12, 2020, we won a temporary restraining order ensuring access to counsel for the named plaintiffs in this case. With the benefit of counsel, the family succeeded on their nonrefoulement interview and was allowed to pursue their asylum claim from within the United States. On January 14, 2020, the court granted our motions to certify the class and enter a preliminary injunction upholding access to counsel for persons detained pending  nonrefoulement interviews.

The government appealed the preliminary injunction, which we defended at the Ninth Circuit Court of Appeals on November 13, 2020. After the government terminated the MPP program going forward as of June 1, 2021, we filed a supplemental brief July 6, 2021, explaining why this case is not moot. Nonetheless, on July 19, 2021, the Ninth Circuit remanded the case to the district court with instructions to vacate the preliminary injunction as moot.

On September 1st, 2021, in the wake of a decision from a federal court in Texas ordering the government to reimplement MPP, we moved the Ninth Circuit to reconsider its earlier decision vacating the preliminary injunction as moot. The Ninth Circuit denied the motion despite the imminent reimplementation of MPP. While there is currently no injunction in place, the case remains pending before the district court and we continue to monitor the development of facts on the ground.

Press release: ACLU: Asylum Seekers Subject to Trump’s Remain in Mexico Policy Must be Given Access to Counsel | ACLU of San Diego and Imperial Counties | The ACLU of San Diego and Imperial Counties fights for individual rights and fundamental freedoms for all. (aclusandiego.org)

Complaint: https://www.aclusandiego.org/sites/default/files/wp-content/uploads/2019/11/2019-11-05-MPP-Non-R-Complaint-FILED.pdf

Order granting preliminary injunction: https://www.aclusandiego.org/sites/default/files/field_documents/order-granting-motion-for-classwide-preliminary-injunction.pdf

Order granting class certification: order-granting-motion-for-class-certification.pdf (aclusandiego.org)



Monika Y. Langarica, Bardis Vakili, Jonathan Markovitz

Date filed

November 5, 2019


Southern District of California, Ninth Circuit Court of Appeals



Case number

19-cv-02119 (S.D. Cal.); 20-55279 (Ninth Circuit)