The Issue

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Pursuant to the Department of Homeland Security’s 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 MPP and allowed to pursue their asylum claims from within the United States.

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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, the ACLU of San Diego and Imperial Counties filed a class action to challenge this practice in the U.S. District Court for the Southern District of California. On November 12, 2020, the court issued a temporary restraining order ensuring access to counsel for the named plaintiffs in this case. With the benefit of counsel, they succeeded on their nonrefoulement interview and were allowed to pursue their asylum claims from within the United States. On January 14, 2020, the court granted motions to certify the class and entered a preliminary injunction upholding access to counsel for persons detained pending  nonrefoulement interviews.

 

The government appealed the preliminary injunction. After the Biden administration attempted to terminate the MPP program in 2021, the Ninth Circuit remanded the case to the district court with instructions to vacate the preliminary injunction as moot. However, litigation efforts by Texas and other states to revive the program, followed by its reimplementation by the second Trump administration, has resulted in the controversy remaining live. The Center for Human Rights & Constitutional Law joined the case in January 2025 and litigates the case together with the UCLA Center for Immigration Law and Policy and the ACLU of San Diego & Imperial Counties.