Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 1 of 55 Page ID #:1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 LATHAM & WATKINS LLP Wayne S. Flick (Bar No. 149525) wayne.s.flick@lw.com Manuel A. Abascal (Bar No. 171301) manny.abascal@lw.com James H. Moon (Bar No. 268215) james.moon@lw.com Kristin P. Housh (Bar No. 286651) kristin.housh@lw.com Robin A. Kelley (Bar No. 287696) robin.kelley@lw.com 355 South Grand Avenue, Suite 100 Los Angeles, California 90071-1560 Telephone: +1.213.485.1234 Facsimile: +1.213.891.8763 AMERICAN IMMIGRATION COUNCIL Melissa Crow (pro hac vice pending) mcrow@immcouncil.org Karolina Walters (pro hac vice pending) kwalters@immcouncil.org Kathryn Shepherd (pro hac vice pending) kshepherd@immcouncil.org 1331 G Street, NW, Suite 200 Washington, DC 20005 Telephone: +1.202.507.7523 Facsimile: +1.202.742.5619 CENTER FOR CONSTITUTIONAL RIGHTS Baher Azmy (pro hac vice pending) bazmy@ccrjustice.org Ghita Schwarz (pro hac vice pending) gschwarz@ccrjustice.org Angelo Guisado (pro hac vice pending) aguisado@ccrjustice.org 666 Broadway, 7th Floor New York, NY 10012 Telephone: +1.212.614.6464 Facsimile: +1.212.614.6499 Attorneys for Plaintiffs 18 19 UNITED STATES DISTRICT COURT 20 CENTRAL DISTRICT OF CALIFORNIA 21 22 23 24 AL OTRO LADO, INC., a California corporation; ABIGAIL DOE, BEATRICE DOE, CAROLINA DOE, DINORA DOE, INGRID DOE and JOSE DOE, individually and on behalf of all others similarly situated, 27 28 ATTORNEYS AT LAW LOS AN GE LES COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR: (1) VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. § 1101, ET SEQ. (2) VIOLATION OF THE ADMINISTRATIVE Plaintiffs, 25 26 Case No. 2:17-cv-5111 v. JOHN F. KELLY, Secretary, United States Department of Homeland Security, in his official capacity; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 2 of 55 Page ID #:2 1 2 3 4 5 6 7 8 KEVIN K. MCALEENAN, Acting Commissioner, United States Customs and Border Protection, in his official capacity; TODD C. OWEN, Executive Assistant Commissioner, Office of Field Operations, United States Customs and Border Protection, in his official capacity; and DOES 1-25, inclusive, Defendants. PROCEDURE ACT, 5 U.S.C. § 551, ET SEQ. (3) VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION (PROCEDURAL DUE PROCESS) (4) VIOLATION OF THE NONREFOULEMENT DOCTRINE CLASS ACTION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTORNEYS AT LAW LOS AN GE LES COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 3 of 55 Page ID #:3 1 2 I. INTRODUCTION Plaintiff Al Otro Lado, Inc. (“Al Otro Lado”), a non-profit legal services 3 organization, and Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, 4 Ingrid Doe and Jose Doe (“Class Plaintiffs”), acting on their own behalf and on 5 behalf of all similarly situated individuals presenting themselves at Ports of Entry 6 (“POEs,” or individually, “POE”) along the U.S.-Mexico border to seek asylum in 7 the United States, allege as follows: 8 1. U.S. Customs and Border Protection (“CBP”) officials have 9 systematically violated U.S. law and binding international human rights law by 10 refusing to allow individuals, including Class Plaintiffs – who present themselves 11 at POEs along the U.S.-Mexico border and assert their intention to apply for 12 asylum or a fear of returning to their home countries – to seek protection in the 13 United States. 14 2. CBP is violating the law by utilizing various tactics – including 15 misrepresentations, threats and intimidation, verbal abuse and physical force, and 16 coercion – to deny asylum seekers, including Class Plaintiffs, access to the asylum 17 process. CBP officials have, for example, misinformed asylum seekers that they 18 could not apply for asylum because “Donald Trump just signed new laws saying 19 there is no asylum for anyone,” coerced asylum seekers into signing forms 20 abandoning their asylum claims by threatening to take their children away, 21 threatened to deport asylum seekers back to their home countries (where they face 22 persecution) if they persisted in their attempts to seek asylum, and even forcefully 23 removed asylum seekers from POEs. 24 3. The prevalence and persistence of CBP’s illegal practice of denying 25 asylum seekers access to the U.S. asylum process has been observed by Plaintiff Al 26 Otro Lado and Class Plaintiffs and has been well documented as occurring along 27 the entire U.S.-Mexico border through comprehensive reporting by non28 governmental organizations, such as Human Rights First, Amnesty International, ATTORNEYS AT LAW LOS AN GE LES 1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 4 of 55 Page ID #:4 1 and Human Rights Watch; other experts working in the U.S.-Mexico border 2 region; as well as numerous news outlets, including The Washington Post, The 3 New York Times, and USA Today. 4 4. CBP’s illegal conduct is occurring as a humanitarian crisis drives 5 vulnerable people experiencing persecution in their home countries to seek refugee 6 protection in the United States. Asylum seekers, including Class Plaintiffs, have 7 fled persecution, violence and death, and face grave and immediate danger to their 8 lives if denied access to the asylum process – a system specifically designed to 9 protect refugees like them. CBP’s unlawful practice of turning asylum seekers 10 away from POEs is forcing asylum seekers, including Class Plaintiffs, to return to 11 Mexico and other countries where they remain susceptible to serious harm such as 12 kidnapping, rape, trafficking, torture or even death. 13 5. On information and belief, CBP’s unlawful acts were performed (and 14 continue to be performed) at the instigation, under the control or authority of, or 15 with the knowledge, consent, direction or acquiescence of, the Defendants named 16 in this action (“Defendants”). By refusing to follow the law, Defendants are 17 engaged in an officially sanctioned policy or practice that has caused, and will 18 continue to cause, Class Plaintiffs and Al Otro Lado concrete and demonstrable 19 injuries and irreparable harm. 20 6. Defendants have deprived Class Plaintiffs and similarly situated 21 individuals of their statutory and regulatory rights to apply for asylum, violated 22 their due process rights under the Fifth Amendment to the United States 23 Constitution and violated the United States’ obligations under international law to 24 uphold the principle of non-refoulement. Each Class Plaintiff has attempted to 25 access the asylum process and would seek to do so again, but for Defendants’ 26 systematic, illegal practice at issue in this action, which has deprived them of such 27 access. 28 ATTORNEYS AT LAW LOS AN GE LES 2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 5 of 55 Page ID #:5 1 7. Defendants have caused injury to Plaintiff Al Otro Lado by frustrating 2 its ability to advance and maintain its central institutional mission and forcing the 3 organization to divert substantial portions of its limited time and resources away 4 from its various programs in Los Angeles, California and Tijuana, Mexico to 5 counteract CBP’s unlawful practices. 6 8. Despite persistent advocacy by Al Otro Lado and other advocates, and 7 despite Class Plaintiffs’ desperate need to seek asylum in the United States, CBP 8 shows no signs of abating its illegal practice. Accordingly, Al Otro Lado and 9 Class Plaintiffs require the intervention of this Court to declare that CBP’s conduct 10 violates U.S. and international law, to enjoin Defendants from circumventing their 11 legal obligations and to order Defendants to implement procedures to ensure 12 effective oversight and accountability in the inspecting and processing of asylum 13 seekers. Absent the Court’s intervention, CBP’s unlawful conduct will continue to 14 imperil the lives and safety of numerous vulnerable asylum seekers. 15 9. In addition, because Class Plaintiffs face imminent and irreparable 16 injury if they are not afforded access to the asylum process, they seek immediate 17 injunctive relief in the form of a temporary restraining order ordering Defendants 18 to allow Class Plaintiffs to enter the United States to pursue their asylum claims. 19 Plaintiff Al Otro Lado and Class Plaintiffs also seek permanent injunctive relief to 20 ensure that Defendants no longer deny other asylum seekers the rights afforded to 21 them under U.S. and international law. 22 23 II. 10. JURISDICTION AND VENUE This Court has subject matter jurisdiction pursuant to 28 U.S.C. 24 §§ 1331, 1346, and 1350. Defendants have waived sovereign immunity for 25 purposes of this suit pursuant to 5 U.S.C. § 702. The Court has authority to grant 26 declaratory relief under 28 U.S.C. §§ 2201 and 2202. 27 28 ATTORNEYS AT LAW LOS AN GE LES 3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 6 of 55 Page ID #:6 1 11. Venue is proper in this district under 28 U.S.C. § 1391(e). All 2 Defendants are sued in their official capacity. Plaintiff Al Otro Lado is an 3 organization that resides and is incorporated in Los Angeles, California. 4 5 III. 12. PARTIES Plaintiff Al Otro Lado is a non-profit, non-partisan organization 6 incorporated in California, and was established in 2014. Al Otro Lado is a legal 7 services organization serving indigent deportees, migrants, refugees and their 8 families, principally in Los Angeles, California and Tijuana, Mexico. Al Otro 9 Lado’s mission is to coordinate and to provide screening, advocacy and legal 10 representation for individuals in asylum and other immigration proceedings, to 11 seek redress for civil rights violations and to provide assistance with other legal 12 and social service needs. Defendants have frustrated Al Otro Lado’s mission and 13 have forced Al Otro Lado to divert significant resources away from its other 14 programs to counteract CBP’s illegal practice of turning away asylum seekers at 15 POEs. 16 13. Through its Refugee Program in Tijuana, Mexico, Al Otro Lado 17 assists individuals seeking protection from persecution in the United States. In 18 response to CBP’s unlawful practice, Al Otro Lado has had to expend significant 19 organizational time and resources and alter entirely its previously used large-scale 20 clinic model. For example, Al Otro Lado previously held large-scale, mass-advisal 21 legal clinics in Tijuana that provided a general overview on asylum laws and 22 procedures. This type of assistance (similar to the Legal Orientation Program of 23 the Executive Office for Immigration Review) only was workable when CBP 24 allowed asylum seekers into the United States in accordance with the law. 25 14. Since 2016, however, CBP’s illegal conduct has compelled Al Otro 26 Lado to expend significant time and resources to send representatives to Tijuana 27 from Los Angeles multiple times per month for extended periods to provide more 28 individualized assistance and coordination of legal and social services, including ATTORNEYS AT LAW LOS AN GE LES 4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 7 of 55 Page ID #:7 1 individual screenings and in-depth trainings to educate volunteer attorneys and 2 asylum seekers regarding CBP’s practice and potential strategies to pursue asylum 3 in the face of CBP’s tactics. Whereas Al Otro Lado previously was able to 4 accommodate several dozen attorneys and over 100 clients at a time in its large5 scale clinics, Al Otro Lado has been forced to transition to an individualized 6 representation model where attorneys are required to work with asylum seekers 7 one-on-one and provide direct representation. Al Otro Lado has expended (and 8 continues to expend) significantly more resources recruiting, training and 9 mentoring pro bono attorneys to help counteract CBP’s unlawful practice. 10 Nevertheless, even asylum seekers provided with such individualized pro bono 11 representation are being turned away by CBP in violation of the law. 12 15. Al Otro Lado also has spent time and resources advocating that CBP 13 provide asylum seekers with access to the asylum process and cease using 14 unlawful tactics to circumvent its legal obligations. For example, Al Otro Lado 15 representatives have filed numerous complaints with the U.S. government detailing 16 examples of CBP’s unlawful practice depriving asylum seekers of access to the 17 asylum process. 18 16. Such diversion of Al Otro Lado’s time and resources negatively 19 impacts its other programs. For example, Al Otro Lado has not been able to pursue 20 funding for or otherwise advance the following programs: (1) its Deportee 21 Reintegration Program through which Al Otro Lado assists deportees who struggle 22 to survive in Tijuana, many of whom have no Mexican identity documents or 23 health coverage, and may not even speak Spanish; and (2) its Cross-Border Family 24 Support Program through which Al Otro Lado assists families with cross-border 25 custody issues, and helps connect family members residing in the United States to 26 social, legal, medical and mental health services. Other programs that have been 27 impacted include Al Otro Lado’s Deportee Financial Literacy Program, Deportee 28 ATTORNEYS AT LAW LOS AN GE LES 5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 8 of 55 Page ID #:8 1 Education Fund, Refugee Mental Health Program and Opioid Recovery Program, 2 among others. 3 17. In addition, the constraints on Al Otro Lado’s limited time and 4 resources has negatively impacted its operations in Los Angeles, including 5 delaying the opening of its Los Angeles office through which it coordinates 6 “Wraparound” services for low-income immigrants in Los Angeles. The increased 7 need for on the ground support in Tijuana has impacted Al Otro Lado’s ability to 8 satisfy its clinical obligations for low-income immigrants at the Wellness Center, 9 located on the grounds of the Los Angeles County+USC Medical Center, and to 10 conduct outreach to provide free legal assistance to homeless individuals in Los 11 Angeles to allow them to better access permanent supportive housing, employment 12 and educational opportunities. 13 18. Al Otro Lado continues to be harmed by Defendants because CBP’s 14 illegal practice at the border frustrates its organizational mission and forces Al 15 Otro Lado to divert resources from its other objectives. If Al Otro Lado had not 16 been compelled to divert resources to address CBP’s unlawful conduct at the U.S.17 Mexico border, it would have directed these resources toward its other programs to 18 further the advancement of its core mission. 19 19. Plaintiff Abigail Doe (“A.D.”) is a female native and citizen of 20 Mexico. She is the mother of two children under the age of ten. A.D. and her 21 family have been targeted and threatened with death or severe harm in Mexico by a 22 large drug cartel that had previously targeted her husband, leaving her certain she 23 would not be protected by local officials. A.D. fled with her two children to 24 Tijuana, where they presented themselves at the San Ysidro POE. On behalf of 25 herself and her children, A.D. expressed her fear of returning to Mexico and her 26 desire to seek asylum in the United States. CBP officials coerced A.D. into 27 recanting her fear and signing a form withdrawing her application for admission to 28 the United States. As a result of this coercion, the form falsely states that A.D. ATTORNEYS AT LAW LOS AN GE LES 6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 9 of 55 Page ID #:9 1 does not have a credible fear of returning to Mexico. As a result of Defendants’ 2 conduct, A.D. and her children were unable to access the asylum process and were 3 forced to return to Tijuana, where they remain in fear for their lives. A.D. and her 4 children would like to present themselves again for asylum but, based on their 5 experience and the experience of others with CBP’s practice at the U.S.-Mexico 6 border, she understands that they would likely be turned away again. A.D. and her 7 children are currently living in temporary housing in Tijuana and can no longer 8 remain in Mexico and have no place else to turn for safety but the United States. 9 20. Plaintiff Beatrice Doe (“B.D.”) is a female native and citizen of 10 Mexico. She is the mother of three children under the age of sixteen. B.D. and her 11 family have been targeted and threatened with death or severe harm in Mexico by a 12 dangerous drug cartel; she was also subject to severe domestic violence. B.D. fled 13 with her children and her nephew to Tijuana, where they presented themselves 14 once at the Otay Mesa POE and twice at the San Ysidro POE. On behalf of herself 15 and her children, B.D. expressed her fear of returning to Mexico and her desire to 16 seek asylum in the United States. CBP officials coerced B.D. into recanting her 17 fear and signing a form withdrawing her application for admission to the United 18 States. As a result of this coercion, the form falsely states that B.D. and her 19 children have no fear of returning to Mexico. As a result of Defendants’ conduct, 20 B.D. and her children were unable to access the asylum process and were forced to 21 return to Tijuana, where they remain in fear for their lives. B.D. and her children 22 would like to present themselves again for asylum but, based on their experience 23 and the experience of others with CBP’s practice at the U.S.-Mexico border, she 24 understands that they would likely be turned away again. B.D. and her children are 25 currently living in temporary housing in Tijuana and can no longer remain in 26 Mexico and have no place else to turn for safety but the United States. 27 21. Plaintiff Carolina Doe (“C.D.”) is a female native and citizen of 28 Mexico. She is the mother of three children. C.D.’s brother-in-law was kidnapped ATTORNEYS AT LAW LOS AN GE LES 7 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 10 of 55 Page ID #:10 1 and dismembered by a dangerous drug cartel in Mexico, and after the murder, her 2 family also was targeted and threatened with death or severe harm. C.D. fled with 3 her children to Tijuana, where they presented themselves at the San Ysidro, POE. 4 On behalf of herself and her children, C.D. expressed her fear of returning to 5 Mexico and her desire to seek asylum in the United States. CBP officials coerced 6 C.D. into recanting her fear on video and signing a form withdrawing her 7 application for admission to the United States. As a result of this coercion, the 8 form falsely states that C.D. and her children have no fear of returning to Mexico. 9 As a result of Defendants’ conduct, C.D. and her children were unable to access 10 the asylum process and were forced to return to Tijuana, where they remain in fear 11 for their lives. C.D. and her children would like to present themselves again for 12 asylum but, based on their experience and the experience of others with CBP’s 13 practice at the U.S.-Mexico border, she understands that they would likely be 14 turned away again. C.D. and her children are currently living in temporary 15 housing in Tijuana and can no longer remain in Mexico and have no place else to 16 turn for safety but the United States. 17 22. Plaintiff Dinora Doe (“D.D.”) is a female native and citizen of 18 Honduras. D.D. and her eighteen-year-old daughter have been targeted, threatened 19 with death or severe harm, and repeatedly raped by MS-13 gang members. D.D. 20 fled with her daughter to Tijuana, where they presented themselves at the Otay 21 Mesa, POE on three occasions. D.D. expressed her fear of returning to Honduras 22 and her desire to seek asylum in the United States. CBP officials misinformed 23 D.D. about her rights under U.S. law and denied her the opportunity to access the 24 asylum process. As a result of Defendants’ conduct, D.D. and her daughter were 25 forced to return to Tijuana, where they remain in fear for their lives. D.D. and her 26 daughter would like to present themselves again for asylum but, based on their 27 experience and the experience of others with CBP’s practice at the U.S.-Mexico 28 border, she understands that they would likely be turned away again. D.D. is ATTORNEYS AT LAW LOS AN GE LES 8 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 11 of 55 Page ID #:11 1 currently living in temporary housing with her daughter in Tijuana and can no 2 longer remain in Mexico and have no place else to turn for safety but the United 3 States. 4 23. Plaintiff Ingrid Doe (“I.D.”) is a female native and citizen of 5 Honduras. She is the mother of two children and is currently pregnant with her 6 third child. I.D.’s mother and three siblings were murdered by 18th Street gang 7 members in Honduras. After the murders, 18th Street gang members threatened to 8 kill I.D. I.D. and her children were also subject to severe domestic violence. I.D. 9 fled with her children to Tijuana, where they presented themselves at the Otay 10 Mesa POE and at the San Ysidro POE. On behalf of herself and her children, I.D. 11 expressed her fear of returning to Honduras and her desire to seek asylum in the 12 United States. CBP officials misinformed I.D. about her rights under U.S. law and 13 denied her the opportunity to access the asylum process. As a result of 14 Defendants’ conduct, I.D. and her children were forced to return to Tijuana, where 15 they remain in fear for their lives. I.D. and her children would like to present 16 themselves again for asylum but, based on their experience and the experience of 17 others with CBP’s practice at the U.S.-Mexico border, she understands that they 18 would likely be turned away again. I.D. is currently living in temporary housing 19 with her children in Tijuana and can no longer remain in Mexico and have no place 20 else to turn for safety but the United States. 21 24. Plaintiff Jose Doe (“J.D.”) is a male native and citizen of Honduras. 22 J.D. was brutally attacked by 18th Street gang members in Honduras. The 18th 23 Street gang also murdered several of his family members and threatened to kidnap 24 and harm J.D.’s two daughters. J.D. fled Honduras and arrived in Nuevo Laredo, 25 Mexico, where he was accosted by gang members. J.D. presented himself at the 26 Laredo, Texas POE the next day. J.D. expressed his fear of returning to Honduras 27 and his desire to seek asylum in the United States. CBP officials misinformed J.D. 28 about his rights under U.S. law and denied him the opportunity to access the ATTORNEYS AT LAW LOS AN GE LES 9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 12 of 55 Page ID #:12 1 asylum process. As a result of Defendants’ conduct, J.D. was forced to return to 2 Nuevo Laredo where he again was approached by gang members. J.D. fled to 3 Monterrey, Mexico, where he remains in fear for his life. J.D. would like to 4 present himself again for asylum but, based on his experience and the experience 5 of others with CBP’s practice at the U.S.-Mexico border, he understands that he 6 would likely be turned away again. J.D. is currently staying temporarily with his 7 wife’s relatives in Monterrey, Mexico and is afraid to return to Honduras. J.D. can 8 no longer remain in Mexico and have no place else to turn for safety but the United 9 States. 10 25. Defendant John F. Kelly is the Secretary of the United States 11 Department of Homeland Security (“DHS”). In this capacity, he is charged with 12 enforcing and administering U.S. immigration laws. He oversees each of the 13 component agencies within DHS, including CBP, and has ultimate authority over 14 all CBP policies, procedures and practices. He is responsible for ensuring that all 15 CBP officials perform their duties in accordance with the Constitution and all 16 relevant laws. 17 26. Defendant Kevin K. McAleenan is Acting Commissioner of CBP. In 18 this capacity, he has direct authority over all CBP policies, procedures and 19 practices, and is responsible for ensuring that all CBP interactions with asylum 20 seekers are performed in accordance with the Constitution and all relevant laws. 21 Defendant McAleenan oversees a staff of more than 60,000 employees, manages a 22 budget of more than $13 billion, and exercises authority over all CBP operations. 23 27. Defendant Todd C. Owen is the Executive Assistant Commissioner of 24 CBP’s Office of Field Operations (“OFO”). OFO is the largest component of CBP 25 and is responsible for border security, including immigration and travel through 26 U.S. POEs. Defendant Owen exercises authority over 20 major field offices and 27 328 POEs. Defendant Owen oversees a staff of more than 29,000 employees, 28 including more than 24,000 CBP officials and specialists, and manages a budget of ATTORNEYS AT LAW LOS AN GE LES 10 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 13 of 55 Page ID #:13 1 more than $5.2 billion. Defendant Owen is responsible for ensuring that all OFO 2 officials perform their duties in accordance with the Constitution and all relevant 3 laws. 4 28. Does 1 through 25, inclusive, are sued herein under fictitious names 5 inasmuch as their true names and capacities are presently unknown to Al Otro 6 Lado and Class Plaintiffs. Al Otro Lado and Class Plaintiffs will amend this 7 complaint to designate the true names and capacities of these parties when the 8 same have been ascertained. Al Otro Lado and Class Plaintiffs are informed and 9 believe, and on that basis allege, that Does 1 through 25, inclusive, were agents or 10 alter egos of Defendants, or are otherwise responsible for all of the acts hereinafter 11 alleged. Al Otro Lado and Class Plaintiffs are informed and believe, and on that 12 basis allege, that the actions of Does 1 through 25, inclusive, as alleged herein, 13 were duly ratified by Defendants, with each Doe acting as the agent or alter ego of 14 Defendants, within the scope, course, and authority of the agency. Defendants and 15 Does 1 through 25, inclusive, are collectively referred to herein as “Defendants.” 16 IV. FACTUAL BACKGROUND 17 A. Humanitarian Crisis South of the U.S.-Mexico Border 18 29. In recent years, children and adults have fled horrendous persecution 19 in their home countries and arrived at POEs along the U.S.-Mexico border to seek 20 protection in the United States through the asylum process. The vast majority of 21 these individuals come from Guatemala, Honduras and El Salvador, an area often 22 termed Central America’s “Northern Triangle.” 23 24 25 26 27 28 ATTORNEYS AT LAW LOS AN GE LES 11 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 14 of 55 Page ID #:14 1 30. These governments are known for corruption,1 including having 2 corrupt police forces filled with gang-related members. 2 Furthermore, the 3 “penetration of the state by criminal groups” is responsible, at least in part, for the 4 fact that as many as 95% of crimes go unpunished.3 31. 5 The “pervasive and systematic levels of violence” associated with the 6 increasing reach of gangs in the Northern Triangle have been well documented. 4 7 Those fleeing the Northern Triangle cite “violence [from] criminal armed groups, 8 including assaults, extortion, and disappearances or murder of family members,”5 as 9 reasons for their flight. These armed groups operate with impunity due to their 10 influence and control over the governments of Northern Triangle countries, which 11 have repeatedly proven to be unable or unwilling to protect their citizens.6 The 12 13 14 1 See Christina Eguizábal et al., Crime and Violence in Central America’s 15 Northern Triangle, The Wilson Ctr., 2 (2015), https://www.wilsoncenter.org/sites/ default/files/FINAL%20PDF_CARSI%20REPORT_0.pdf. 16 2 “Over the past five years, at least 435 members of the [Salvadoran] armed 17 forces were fired for being gang members or having ties to gangs . . . . Another 39 aspiring police officers were expelled from the National Public Security Academy 18 over the same period, of which 25 ‘belonged to’ the Mara Salvatrucha, or MS13, 19 while 13 were from the Barrio 18 gang. Nine more active police officers were also dismissed for alleged gang ties over the five years.” Mimi Yagoub, 480 Gang 20 Members Infiltrated El Salvador Security Forces: Report, InSight Crime (Feb. 22, 2016), http://www.insightcrime.org/news-briefs/did-480-gang-members-infiltrate21 el-salvador-security-forces. Eguizábal et al., supra note 1, at 2. 22 3 4 UNHCR, Women on the Run: First-Hand Accounts of Refugees Fleeing El 23 Salvador, Guatemala, Honduras, and Mexico, 15 (2015), http://www.unhcr.org/en24 us/publications/operations/5630f24c6/women-run.html [hereinafter Women on the Run]. 25 5 Id. 26 6 Id. at 16 (finding that citizens of Northern Triangle countries are “murdered 27 with impunity”); id. at 23 (finding that 69% of women interviewed tried relocating within their own countries at least once before fleeing and indicating that 10% 28 “stated that the police or other authorities were the direct source of their harm”). ATTORNEYS AT LAW LOS AN GE LES 12 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 15 of 55 Page ID #:15 1 degree of violence suffered by people in the Northern Triangle has been compared 2 to that experienced in war zones.7 3 32. This violence and corruption is not limited to the Northern Triangle, 4 but also is experienced by individuals fleeing Mexico. Mexico has faced a drastic 5 rise in criminal activity since the early 2000s that is attributed to organized 6 criminal groups and has been accompanied by increases in violence and 7 corruption.8 Although the northern half of Mexico was often considered the most 8 dangerous, recent reports reveal an increase in violence in the central and southern 9 states of Mexico, particularly in Guerrero, Michoacán, and the State of Mexico. 9 10 Along with the increase in violence and organized criminal activity, it is well 11 documented that the police and armed forces operate with impunity in Mexico, 12 leaving victims unable to resort to their own government for protection. 10 Indeed, 13 “[i]n some regions of Mexico the state has become so closely identified with 14 15 16 7 Médecins Sans Frontières (Doctors Without Borders), Forced to Flee 17 Central America’s Northern Triangle: A Neglected Humanitarian Crisis, 6 (2017), 18 https://www.doctorswithoutborders.org/sites/usa/files/msf_forced-to-flee-centralamericas-northern-triangle.pdf [hereinafter Forced to Flee]. 19 8 Dominic Joseph Pera, Drugs Violence and Public [In]Security: Mexico’s Federal Police and Human Rights Abuse, 2-4, 7 (Justice in Mex. Working Paper 20 Series Paper No. 1, 2015), https://justiceinmexico.org/wp-content/uploads/2015/ 21 12/151204_PERA_DOMINIC_DrugViolenceandPublicInsecurity_FINAL.pdf; see U.S. Dep’t of State, Bureau of Democracy, Human Rights and Labor, Country 22 Reports on Human Rights Practices for 2014, https://www.state.gov/j/drl/rls/hrrpt/ 23 2014humanrightsreport/index.htm?year=2014&dlid=236702#wrapper. 9 See, e.g., U.S. Dep’t of State, Bureau of Diplomatic Sec., Mexico 2015 24 Crime and Safety Report: Mexico City, https://www.osac.gov/pages/ 25 ContentReportDetails.aspx?cid=17114 (reporting that a “common practice is for gangs to charge ‘protection fees’ or add their own tax to products and services with 26 the threat of violence for those who fail to pay”). 10 See Pera, supra note 8, at 4 (“Drug trafficking organizations have infiltrated 27 government positions in many areas, and their influence over state personnel has 28 dramatic implications.”). ATTORNEYS AT LAW LOS AN GE LES 13 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 16 of 55 Page ID #:16 1 criminal gangs and drug cartels that these criminal organizations do not need to 2 corrupt the state – they essentially ‘are’ part of the state.” 11 33. 3 In addition, women and children often flee severe domestic violence. 4 Women report prolonged instances of physical, sexual and psychological domestic 5 violence, and most of their accounts demonstrate that the authorities in their home 6 countries were either unable or unwilling to provide meaningful assistance.12 7 Abusive partners are often members or associates of criminal armed groups.13 8 Abusers frequently threaten women with harm to their parents, siblings or children 9 if they try to leave. 14 Some women who fled their countries have heard from 10 family members back home that their abusers continue to look for them. 15 34. 11 After fleeing their home countries, children and adults face an arduous 12 and dangerous journey to the United States.16 The situation along the popular 13 migration routes to the United States has been termed a “humanitarian crisis” 14 15 11 Alberto Díaz-Cayeros et al., Caught in the Crossfire: The Geography of 16 Extortion and Police Corruption in Mexico, 3-4 (Stanford Ctr. for Int’l Dev., Paper 17 No. 545, 2015), http://scid.stanford.edu/publications/caught-crossfire-geographyextortion-and-police-corruption-mexico. 18 12 Women on the Run, supra note 4, at 25. The women interviewed described 19 repeated rapes and sexual assaults as well as violent physical abuse that included: “beatings with hands, a baseball bat and other weapons; kicking; threats to do 20 bodily harm with knives; and repeatedly being thrown against walls and the ground.” Id. 21 13 Id. 22 14 Id. at 27. 23 15 Id. 16 See id. at 43-45 (describing extortion, sexual violence, and physical 24 violence); see also Rodrigo Dominguez Villegas, Central American Migrants and 25 “La Bestia”: The Route, Dangers, and Government Responses, Migration Info. Source (Sept. 10, 2014), http://www.migrationpolicy.org/article/central-american26 migrants-and-%E2%80%9Cla-bestia%E2%80%9D-route-dangers-and27 government-responses (listing “injury or death from unsafe travelling conditions, gang violence, sexual assault, extortion, kidnapping, and recruitment by organized 28 crime” as dangers faced on the journey to the United States). ATTORNEYS AT LAW LOS AN GE LES 14 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 17 of 55 Page ID #:17 1 because of the extraordinary violence faced by those making the journey. 17 In 2 2015 and 2016, 68% of migrants from the Northern Triangle region experienced 3 violence, including sexual assault, on their journeys through Central America and 4 Mexico. 18 Perpetrators of violence “include[] members of gangs and other 5 criminal organizations, as well as members of the Mexican security forces.” 19 6 Thus, the initial mistrust and inability to rely upon government authorities for 7 protection that leads many to flee their home countries accompanies them along 8 their journeys.20 35. 9 In addition, Mexico’s northern border region is particularly plagued 10 with crime and violence, presenting renewed dangers for asylum seekers just as 11 they approach their destination.21 The most pervasive problems include 12 disappearances, kidnappings, rape, trafficking, extortion, execution and sexual and 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTORNEYS AT LAW LOS AN GE LES 17 See Eguizábal et al., supra note 1, at 3. 18 See Forced to Flee, supra note 7, at 11. Close to half (44%) of the migrants reported being hit, 40% said they had been pushed, grabbed or asphyxiated, and 7% said they had been shot. Id. Nearly one-third (31.4%) of women and 17.2% of men surveyed during that same time period had been sexually abused during their journeys. Id. at 12. 19 Id. at 5. 20 See, e.g., Villegas, supra note 16 (referencing documentation of “the abuse of power by various Mexican authorities, including agents from the National Migration Institute, municipal governments, and state police” against individuals traveling to the U.S. border). 21 See U.S. Dep’t of State, Mexico Travel Warning (Dec. 8, 2016), https:// travel.state.gov/content/passports/en/alertswarnings/mexico-travel-warning.html (reporting violent crime and an increase in homicide in the state of Baja California (including Tijuana and Mexicali); criminal activity and violence in the state of Chihuahua (including Ciudad Juarez); violence and criminal activity, including homicide, armed robbery, carjacking, kidnapping, extortion, and sexual assault in the state of Coahuila (particularly along the highways between Piedras Negras and Nuevo Laredo); that the state of Sonora (including Nogales) is a key region in the international drug and human trafficking trades; and violent crime, including homicide, armed robbery, carjacking, kidnapping, extortion, and sexual assault in the state of Tamaulipas (including Matamoros, Nuevo Laredo, and Reynosa), where state and municipal law enforcement capacity is limited to nonexistent in most parts of the state). 15 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 18 of 55 Page ID #:18 1 labor exploitation by state and non-state actors.22 Recently, the situation at the 2 border has worsened: smugglers have increased their prices, cartel members have 3 increased their surveillance and control of areas around border crossings, and the 4 number of migrants kidnapped and held for ransom has increased.23 36. 5 By rejecting asylum seekers at POEs, Defendants are forcing them to 6 return to the dangerous conditions that drove them to flee their countries in the first 7 place.24 8 B. Defendants’ Systematic, Illegal Practice 9 37. Since at least the summer of 2016 and continuing to the present, CBP 10 officials, at or under the direction or with the knowledge of Defendants, have 11 consistently and systematically prevented asylum seekers arriving at POEs along 12 the U.S.-Mexico border from accessing the U.S. asylum process.25 CBP’s illegal 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTORNEYS AT LAW LOS AN GE LES 22 B. Shaw Drake et al., Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers, Human Rights First, 16 (2017), https://www.humanrightsfirst.org/sites/default/files/hrf-crossing-the-line-report.pdf [hereinafter Crossing the Line]. 23 Id. 24 Id.; see also B. Shaw Drake, Violations at the Border: The El Paso Sector, Human Rights First, 2-3 (2017), http://www.humanrightsfirst.org/sites/default/ files/hrf-violations-at-el-paso-border-rep.pdf (explaining the risks facing asylum seekers who are turned away at U.S. POEs, including being deported back to their home countries where they face persecution). 25 There is evidence that CBP officials began unlawfully dissuading asylum seekers from pursuing their claims or flatly refusing them entry to the United States even prior to 2016. See American Immigration Council, Mexican and Central American Asylum and Credible Fear Claims: Background and Context, 10 (2014), https://www.americanimmigrationcouncil.org/sites/ default/files/research/asylum_and_credible_fear_claims_final_0.pdf (reporting that Mexican asylum seekers arriving in El Paso “expressed a fear of persecution [but] were told by CBP that the U.S. doesn’t give Mexicans asylum, and they [we]re turned back”); see also U.S. Comm’n on Int’l Religious Freedom, Report on Asylum Seekers in Expedited Removal: Volume I: Findings & Recommendations, 54 (2005) [hereinafter 2005 USCIRF Report] (reporting that two groups of asylum seekers who arrived at the San Ysidro POE were “improperly refused entry to the United States for . . . lacking proper documentation and [were] ‘pushed back’ . . . without [being] refer[red] . . . to secondary inspection” and without a “record of the 16 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 19 of 55 Page ID #:19 1 practice, which violates U.S. and international law, has been documented in 2 hundreds of cases at POEs, including POEs in San Ysidro, California; Otay Mesa, 3 California; Tecate, California; Calexico, California; Nogales, Arizona; Eagle Pass, 4 Texas; El Paso, Texas; Laredo, Texas; and Hidalgo, Texas, among others. 5 38. CBP’s practice of denying asylum seekers access to the asylum 6 process has been well documented. 26 Al Otro Lado and Class Plaintiffs, as well as 7 numerous non-governmental organizations 27 and news outlets,28 have documented 8 primary inspection” being created); see also Human Rights Watch, “You Don’t 9 Have Rights Here”: US Border Screening and Returns of Central Americans to Risk of Serious Harm, 2, 8 (2014), https://www.hrw.org/report/2014/10/16/you10 dont-have-rights-here/us-border-screening-and-returns-central-americans-risk 11 [hereinafter You Don’t Have Rights Here] (concluding that the “cursory screening [conducted by CBP officials] is failing to effectively identify [asylum seekers]” 12 and reporting that some “border officials acknowledged hearing [non-citizens’] expressions of fear but pressured them to abandon their claims”). 13 26 See, e.g., Borderland Immigration Council, Discretion to Deny: Family 14 Separation, Prolonged Detention, and Deterrence of Asylum Seekers at the Hands of Immigration Authorities Along the U.S.-Mexico Border, 12 (2017), https:// 15 media.wix.com/ugd/e07ba9_72743e60ea6d4c3aa796becc71c3b0fe.pdf (reporting 16 that “it is commonplace for asylum seekers to be placed in expedited removal proceedings and summarily deported . . ., despite expressing fear”); U.S. Comm’n 17 on Int’l Religious Freedom, Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, 20 (2016) (reporting that despite findings and 18 recommendations in a 2005 study relating to primary inspection, USCIRF observers in 2016 continued to find “several examples of non-compliance with 19 required procedures” in CBP primary inspection interviews); see also 2005 20 USCIRF Report, supra note 25, at 54 (finding that, in approximately half of the inspections observed, inspectors failed to read the proper advisals regarding 21 asylum to the non-citizen and that “in 15 percent of [the] cases [ ] where an arriving [non-citizen] expressed a fear of return to the inspector, that [non-citizen] 22 was not referred” for a credible fear interview). 23 27 See, e.g., Crossing the Line, supra note 22; Amnesty Int’l, Facing Walls: USA and Mexico’s Violation of the Rights of Asylum Seekers, 19-22 (2017), 24 https://www.amnestyusa.org/reports/facing-walls-usa-mexicos-violation-rights25 asylum-seekers/ [hereinafter Facing Walls]; “You Don’t Have Rights Here,” supra note 25, at 2, 4. 26 28 Joshua Partlow, U.S. Border Officials Are Illegally Turning Away Asylum 27 Seekers, Critics Say, Wash. Post (Jan. 16, 2017), https://www.washingtonpost. com/world/the_americas/us-border-officials-are-illegally-turning-away-asylum28 seekers-critics-say/2017/01/16/f7f5c54a-c6d0-11e6-acda-59924caa2450_story. ATTORNEYS AT LAW LOS AN GE LES 17 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 20 of 55 Page ID #:20 1 well over 100 cases in which CBP officials have failed to comply with U.S. and 2 international law and arbitrarily denied access to the asylum process to asylum 3 seekers presenting themselves at POEs along the U.S.-Mexico border. 4 1. 5 Defendants Have Violated Each of the Class Plaintiffs’ Rights to Seek Asylum 6 Plaintiff Abigail Doe 7 39. A.D. is a native and citizen of Mexico. She is the mother of two 8 children under the age of ten, with whom she previously lived in Central Mexico. 9 In May 2017, A.D.’s husband disappeared after he refused to allow drug cartel 10 members to use his tractor-trailer to transport drugs. 11 40. When A.D. reported her husband’s disappearance to governmental 12 authorities, members of the drug cartel abducted her, held her at gunpoint, and 13 threatened to kill her and her children if she continued to investigate her husband’s 14 disappearance. One cartel member told A.D. that she had to leave if she wanted to 15 live. Fearing for her life, A.D. fled to Tijuana with her children to seek asylum in 16 the United States. 17 41. After arriving in Tijuana, A.D. and her children immediately went to 18 the San Ysidro POE, where she informed CBP officials of her intent to apply for 19 asylum and her fear of returning to Mexico. CBP officials repeatedly misinformed 20 A.D. that she did not qualify for asylum. One CBP official threatened that her 21 children would be taken away from her if they allowed her to cross the border and 22 again misinformed her that only the Mexican government could help her. 23 42. CBP officials coerced A.D. into signing a document in English which 24 she could not read and did not understand. The document stated that she did not 25 html?utm_term=.83c7aed8fc6c; Caitlin Dickerson & Miriam Jordan, ‘No Asylum 26 Here’: Some Say U.S. Border Agents Rejected Them, N.Y. Times (May 3, 2017), https://www.nytimes.com/2017/05/03/us/asylum-border-customs.html; Rafael 27 Carranza, Are Asylum Seekers Being Turned Away at the Border?, USA Today 28 (May 5, 2017), https://www.usatoday.com/story/news/politics/2017/05/05/asylumseekers-turned-away/311552001/. ATTORNEYS AT LAW LOS AN GE LES 18 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 21 of 55 Page ID #:21 1 have a fear of returning to Mexico and was withdrawing her application for 2 admission. CBP officials then instructed A.D. to say that she had agreed to accept 3 the assistance of the Mexican government and used a video camera to record her 4 statement. A CBP official then took A.D. and her children back to Mexico and left 5 them to fend for themselves. 6 43. The statements CBP coercively obtained from A.D. were and are still 7 false; A.D. does fear returning to and staying in Mexico and does not intend to 8 seek assistance from the Mexican government because she believes such efforts 9 would be futile. 10 44. A.D. and her children would like to present themselves again to seek 11 asylum but, based on their experience and the experience of others with CBP’s 12 practice at POEs, she understands that they would likely be turned away again or 13 that CBP would take her children away from her. 14 45. A.D. and her children are currently staying in temporary housing in 15 Tijuana, where A.D. continues to fear for her life and the lives of her children. 16 A.D. can no longer remain in Mexico and has no place else to turn for safety but 17 the United States. 18 Plaintiff Beatrice Doe 19 46. B.D. is a native and citizen of Mexico. In May 2017, B.D. fled her 20 hometown in Mexico with her three children, ages seven, eleven and fifteen, and 21 her nephew. B.D.’s nephew was targeted by the Zetas, a Mexican drug cartel that 22 controls most of Southern Mexico, for failing to pay a fee that the Zetas demanded 23 from all individuals who worked in the market. The Zetas threatened to kill B.D.’s 24 nephew and to harm his family if he did not pay the fees. The cartel also pressured 25 B.D.’s nephew to join their forces and threatened to increase the fee if he refused. 26 On two occasions when B.D.’s nephew failed to pay the fees, the Zetas beat him 27 up. 28 ATTORNEYS AT LAW LOS AN GE LES 19 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 22 of 55 Page ID #:22 1 47. B.D. herself suffered severe domestic violence at the hands of her 2 husband. In May 2017, she reported his abuse to two government agencies. When 3 Mexican government officials subsequently requested that B.D.’s husband meet 4 with them, he responded that he would continue to do what he wanted with B.D. 5 and his children. Terrified, B.D. left their house the same day. 6 48. B.D. fled with her children and nephew and traveled to Tijuana in 7 order to seek asylum in the United States. Initially, B.D. and her family went to 8 the Otay Mesa POE. When B.D. expressed their intent to seek asylum, a CBP 9 official told her that asylum-related services were not provided at that port, and 10 directed her to go to the San Ysidro POE. B.D. and her family then attempted 11 twice to request asylum at the San Ysidro POE, but CBP officials turned them 12 away both times. 13 49. The first time B.D. and her family presented themselves at the San 14 Ysidro POE, she explained that their lives were at risk in Mexico and that she was 15 afraid of her husband. CBP officials misinformed her that the U.S. government 16 had no obligation to help her or her family, that they did not have a right to enter 17 the United States because they were not born there, and that she should seek help 18 from the Mexican government. 19 50. Another CBP official then threatened to take B.D.’s nephew away 20 from her and to put her in jail if she refused to sign an English document which she 21 did not understand. Believing that she had no other option, she signed the 22 document. CBP officials then escorted B.D. and her family out of the POE. 23 51. The statement CBP coercively obtained from B.D. were and are still 24 false; B.D. and her children do fear returning to and staying in Mexico. 25 52. The next day, B.D. and her family returned to the San Ysidro POE. A 26 CBP official who recognized B.D. from the day before misinformed her that she 27 had no right to enter the United States or seek asylum, and that she would be put in 28 jail for three years if she returned to the POE. After another CBP official ATTORNEYS AT LAW LOS AN GE LES 20 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 23 of 55 Page ID #:23 1 separately threatened to transfer B.D.’s nephew to Mexican authorities and return 2 him to Southern Mexico, CBP officials again escorted B.D. and her family out of 3 the San Ysidro POE. 4 53. B.D. and her children would like to present themselves again for 5 asylum, but based on their experience and the experience of others with CBP’s 6 practice at POEs, she understands that they would likely be turned away again or 7 put in jail as the CBP officials threatened. 8 54. B.D. and her children are currently staying in temporary housing in 9 Tijuana, where B.D. continues to fear for her life and the lives of her children. 10 B.D. can no longer remain in Mexico and has no place else to turn for safety but 11 the United States. 12 Plaintiff Carolina Doe 13 55. C.D. is a native and citizen of Mexico. In May 2017, C.D. fled her 14 hometown in Mexico with her three children, ages nine, fifteen and eighteen, after 15 her brother-in-law, a high-ranking police official, was kidnapped, tortured and 16 killed by members of a drug trafficking cartel. His dismembered body was found 17 in garbage bags in a cemetery. C.D.’s husband witnessed the kidnapping and 18 showed C.D. a picture of one of the men who was involved. Drug cartel members 19 threatened C.D.’s husband after the murder, and C.D. and her husband saw the van 20 used in the kidnapping drive by their house twice. Two men followed C.D. and 21 her daughters on her way home from work, and several men came to their home at 22 night. C.D. was terrified and hid with her daughters in the bathroom because she 23 feared for her life and the lives of her daughters. 24 56. In May 2017, C.D. fled in the middle of the night with her daughters 25 and traveled to Tijuana in order to seek asylum in the United States. C.D. and her 26 daughters presented themselves at the San Ysidro POE, and C.D. explained that 27 they were afraid of returning to Mexico and wanted to seek asylum. CBP officials 28 locked them in a room overnight at the San Ysidro POE. In the morning, a CBP ATTORNEYS AT LAW LOS AN GE LES 21 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 24 of 55 Page ID #:24 1 official told C.D. that she would not be granted asylum and misinformed her that 2 the protection she was seeking in the United States could be provided by the 3 Mexican authorities. The CBP official threatened to take away C.D.’s fifteen-year4 old U.S. citizen daughter and put her in foster care, and told C.D. that if she did not 5 want her daughter taken away from her, then she had to make a statement on video 6 that she was not afraid of returning to Mexico. 7 57. The CBP officials coerced C.D. into recanting her fear on video. C.D. 8 initially did not respond as the CBP officials instructed her to do because the 9 responses they told her to say were not true. C.D. was afraid and wanted to 10 respond that she was very scared to return to Mexico. One of the CBP officials 11 repeated that the only way C.D. and her daughters would be able to leave 12 voluntarily without her U.S. citizen daughter being taken away from her was if 13 C.D. stated on video that she was not scared. Having been locked in a room 14 overnight, C.D. was tired and scared and felt like she was in jail. The CBP 15 officials continued to coerce her until she finally did what they told her to do, 16 believing she had no choice. 17 58. The CBP officials also coerced C.D. into signing a document in 18 English which she could not read and did not understand. The document stated 19 that she did not have a fear of returning to Mexico and was withdrawing her 20 application for admission. The statements CBP coercively obtained from C.D. 21 were and are still false; C.D. does fear returning to and staying in Mexico. 22 59. Several days after CBP turned away C.D. and her daughters at the 23 POE, C.D. made arrangements for her U.S. citizen daughter to cross into the 24 United States. C.D. and her other two children would like to present themselves 25 again for asylum, but based on their experience and the experience of others with 26 CBP’s practice at POEs, she understands that they would likely be turned away 27 again. 28 ATTORNEYS AT LAW LOS AN GE LES 22 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 25 of 55 Page ID #:25 1 60. C.D. and her two children are currently staying in temporary housing 2 in Tijuana, where C.D. continues to fear for her life and the lives of her children. 3 C.D. can no longer remain in Mexico and has no place else to turn for safety but 4 the United States. 5 Plaintiff Dinora Doe 6 61. D.D. is a native and citizen of Honduras. MS-13 gang members 7 repeatedly threatened to kill D.D. and her then-seventeen-year-old daughter if they 8 did not leave their house. After receiving the third threat, they fled to another city 9 where they remained in hiding. 10 62. When D.D. and her daughter subsequently returned home, three MS- 11 13 members held them captive for three days and repeatedly raped each of them in 12 front of the other. 13 63. When D.D. and her daughter finally escaped, they fled to a shelter in 14 Mexico. However, after being threatened by MS-13 gang members again in 15 Mexico, they knew they had to leave. 16 64. On three separate occasions in August 2016, D.D. and her daughter 17 went to the Otay Mesa POE and expressed their intent to seek asylum in the United 18 States. Each time, CBP officials turned them away. 19 65. During D.D.’s first attempt, CBP officials misinformed her that there 20 was no asylum in the United States and escorted D.D. and her daughter outside the 21 POE. 22 66. During her second attempt later the same day, one CBP official 23 misinformed D.D. that there was no asylum available in the United States for 24 Central Americans and that if they returned to the POE, they would be handed over 25 to Mexican authorities and deported to Honduras. 26 67. During her third attempt the next morning, a CBP official 27 misinformed D.D. that she could pass through the POE, but would have to leave 28 ATTORNEYS AT LAW LOS AN GE LES 23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 26 of 55 Page ID #:26 1 her daughter behind. When D.D. insisted that she and her daughter had a right to 2 apply for asylum, CBP officials escorted them out of the POE. 3 68. D.D. and her children would like to present themselves again for 4 asylum but, based on their experience and the experience of others with CBP’s 5 practice at POEs, she understands that they would likely be turned away again or 6 separated from each other. 7 69. D.D. and her daughter are currently staying in Tijuana. In June 2017, 8 D.D. received a call from a person connected to the MS-13 gang trying to identify 9 her location in Mexico. D.D. continues to fear for her life and the life of her 10 daughter. D.D. can no longer remain in Mexico and has no place else to turn for 11 safety but the United States. 12 Plaintiff Ingrid Doe 13 70. I.D. is a native and citizen of Honduras. I.D. has two children and is 14 pregnant and expecting her third child in September. 15 71. 18th Street gang members murdered I.D.’s mother and three siblings. 16 They also threatened to kill I.D. 17 72. For several years, I.D. and her children were subject to severe abuse 18 by her partner and the father of her son and the child that she is expecting. I.D.’s 19 partner regularly raped I.D., sometimes in front of her children. He would also 20 burn and beat I.D. One day, I.D.’s partner put a gun to I.D.’s head and threatened 21 to kill her. 22 73. In June 2017, I.D. fled with her children to Tijuana, where they 23 presented themselves at the Otay Mesa POE to seek asylum in the United States. 24 74. When they arrived at the Otay Mesa POE, I.D. approached CBP 25 officials and expressed her intent to seek asylum. The CBP officials misinformed 26 I.D. that they could not help her at the Otay Mesa POE and that she must go to the 27 San Ysidro POE. 28 ATTORNEYS AT LAW LOS AN GE LES 24 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 27 of 55 Page ID #:27 1 75. I.D. immediately went to the San Ysidro POE with her children, 2 approached several CBP officials, and expressed her intent to seek asylum. One of 3 the officials misinformed I.D. that there was no asylum and that she could not pass 4 through the POE because she did not have any documents. I.D. again stated that 5 she wanted to seek asylum and that she could not go back to Honduras because she 6 and her children would be killed. The CBP official responded that there was a new 7 law in the United States that meant that there was no more asylum. Another CBP 8 official then escorted I.D. and her children out of the port. 9 76. I.D. and her children would like to present themselves again for 10 asylum but, based on their experience and the experience of others with CBP’s 11 practice at POEs, I.D. understands that they would likely be turned away again. 12 77. I.D. and her children are currently staying in a shelter in Tijuana, 13 where I.D. continues to fear for her life and the lives of her children. I.D. can no 14 longer remain in Mexico and has no place else to turn for safety but the United 15 States. 16 Plaintiff Jose Doe 17 78. J.D. is a native and citizen of Honduras. J.D. operated a small banana 18 business in Honduras. 18th Street gang members began targeting his business for 19 extortion and brutally attacked J.D. with a machete when he fell behind on 20 payments. 18th Street later targeted another business J.D. established. 21 79. In 2016, 18th Street kidnapped and killed his wife’s cousin after she 22 resisted the gang, and threatened to kidnap and sexually assault J.D.’s two teenage 23 daughters. 18th Street also killed two of his wife’s uncles. 24 80. In June 2017, J.D. fled Honduras and took many buses through 25 Honduras and Guatemala to avoid detection. J.D. arrived in Nuevo Laredo and 26 was accosted by multiple gang members. J.D. presented himself at the Laredo, 27 Texas POE the next day after this terrifying encounter, and he explained that he 28 was afraid of returning to Honduras and wanted to seek asylum. CBP officials at ATTORNEYS AT LAW LOS AN GE LES 25 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 28 of 55 Page ID #:28 1 the POE misinformed J.D. that he needed a visa to apply for asylum and told him 2 that there was no one to handle his application. CBP officials sent J.D. back to 3 Nuevo Laredo, where he again was approached by gang members. 4 81. J.D. would like to present himself again to seek asylum but, based on 5 his experience and the experience of others with CBP’s practice at POEs, he 6 understands that he would likely be turned away again. 7 82. J.D. is currently staying temporarily with his wife’s relatives in 8 Monterrey, Mexico where he continues to fear for his life. J.D. cannot remain in 9 Mexico and has no place to turn for safety but the United States. 10 2. 11 12 CBP Officials Have Systematically Denied Numerous Other Asylum Seekers Access to the Asylum Process 83. Class Plaintiffs’ experiences reflect a systematic and persistent 13 practice by CBP that has unlawfully denied numerous other asylum seekers access 14 to the U.S. asylum process. 15 84. CBP officials have carried out Defendants’ systematic practice of 16 denying asylum seekers access to the U.S. asylum process by relying on certain 17 categories of tactics, including misrepresentations, threats and intimidation, verbal 18 and physical abuse, and coercion. Asylum seekers and advocates have experienced 19 and/or witnessed firsthand CBP’s illegal conduct. 20 21 a. 85. Misrepresentations: CBP officials misinform asylum seekers of the following: that the 22 United States is no longer providing asylum; that President Trump signed a new 23 law that ended asylum in the United States; that the law providing asylum to 24 Central Americans recently ended; that Mexicans are no longer eligible for asylum; 25 that the United States is no longer accepting mothers with children; that asylum 26 seekers cannot seek asylum at the POE but must go to the U.S. Consulate in 27 Mexico instead; that visas are required to cross at a POE; and that asylum seekers 28 ATTORNEYS AT LAW LOS AN GE LES 26 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 29 of 55 Page ID #:29 1 must obtain a “ticket” from a Mexican government agency (Grupo Beta) before 2 they will be allowed to enter the United States to seek asylum. 3 86. Class Plaintiffs A.D., B.D., D.D., I.D., and J.D. each experienced this 4 practice. D.D. and I.D. both were told asylum was no longer available in the 5 United States. A.D. was told that only the Mexican government could help her. 6 B.D. was told that the U.S. government had no obligation to help her and that she 7 had no right to enter the United States. J.D. was told, falsely, that he needed a visa 8 in order to apply for asylum. 9 10 b. 87. Use of Threats and Intimidation: CBP officials threaten and intimidate asylum seekers in the following 11 ways: threatening to take asylum seekers’ children away from them if they did not 12 leave the POE; threatening to detain and to deport asylum seekers to their home 13 countries if they persisted in their claims; threating to call Mexican immigration or 14 otherwise turn asylum seekers over to the Mexican government if they do not leave 15 the POE; threatening to ban asylum seekers from the United States for life if they 16 continued to pursue asylum; and blocking asylum seekers from entering the CBP 17 office and threatening to let dogs loose if they did not leave the POE. 18 88. Class Plaintiffs A.D., B.D. and C.D. each experienced this practice 19 and were threatened that if they tried to cross and pursue their asylum claims, U.S. 20 government officials would take their children away or separate their families. 21 Additionally, D.D. was threatened that if she and her daughter returned to the POE, 22 they would be deported to Honduras. B.D. was told that if she returned to the 23 POE, she would be put in jail for three years. 24 25 c. 89. Use of Verbal and Physical Abuse: As part of their systematic practice of denying asylum seekers 26 arriving at POEs access to the U.S. asylum process, CBP officials also regularly 27 resort to verbal and even physical abuse. 28 ATTORNEYS AT LAW LOS AN GE LES 27 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 30 of 55 Page ID #:30 1 90. For example, CBP officials have resorted to the following verbal and 2 physical abuse: grabbing an asylum seeker’s six-year-old daughter’s arm and 3 throwing her down onto the ground; holding a gun to an asylum seeker’s back and 4 forcing her out of the POE; knocking a transgender asylum seeker to the ground 5 and stepping on her neck; telling an asylum seeker she was scaring her five-year6 old son by persisting in her request for asylum and accusing her of being a bad 7 mother; laughing at an asylum-seeking mother and her three children and mocking 8 the asylum seeker’s thirteen-year-old son who has cerebral palsy; and yelling 9 profanities at an asylum-seeking mother and her five-year-old son, throwing her to 10 the ground, and forcefully pressing her cheek into the pavement. 11 91. Class Plaintiffs D.D. and B.D. both experienced this practice. One 12 CBP official pulled D.D. inside a gate at the POE to try to separate her from her 13 daughter. Later, as CBP officials escorted D.D. and her daughter out of the POE, 14 one of the CBP officials tried to drag D.D. by her arm. B.D. also experienced 15 rough treatment and cried out in pain when a CBP official forcefully searched her 16 for drugs. 17 18 d. 92. Use of Coercion: CBP officials resort to coercion to deny asylum seekers arriving at 19 POEs access to the U.S. asylum process, including: coercing asylum seekers into 20 recanting their fear on video; and coercing asylum seekers into withdrawing their 21 applications for admission to the United States. 22 93. Class Plaintiffs A.D., B.D. and C.D. each experienced this practice of 23 coercion. Each was coerced to sign a form, written in English and not translated, 24 which they did not understand, that stated they were voluntarily withdrawing their 25 claims for asylum on the grounds that they did not fear returning to Mexico. The 26 forms CBP officials coerced them to sign were and still are false: A.D., B.D. and 27 C.D. still have a grave fear of persecution in Mexico. 28 ATTORNEYS AT LAW LOS AN GE LES 28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 31 of 55 Page ID #:31 1 94. CBP officials’ use of various tactics, including misrepresentations, 2 threats and intimidation, verbal and physical abuse, and coercion, at the POEs 3 along the U.S.-Mexico border further evidence a systematic practice of denying 4 asylum seekers access to the U.S. asylum process. 95. 5 The prevalence and persistence of CBP’s illegal practice has been 6 heavily documented by non-governmental organizations and other experts working 7 in the U.S.-Mexico border region. 96. 8 In May 2017, Human Rights First, a respected non-governmental 9 organization, published an Exhaustive Report entitled, “Crossing the Line: U.S. 10 Border Agents Illegally Reject Asylum Seekers.” 29 In that report, Human Rights 11 First details firsthand accounts of CBP officials turning away asylum seekers 12 without referring them for further screening or immigration court proceedings at 13 POEs across the U.S.-Mexico border. The report details the following conduct: a. 14 CBP officials simply ignore requests by individuals to seek asylum; 15 b. 16 CBP officials give false information about U.S. laws and 17 procedures, such as saying that “the United States is not giving 18 asylum anymore” and “[President] Trump says we don’t have 19 to let you in”; 20 c. CBP officials mock and intimidate asylum seekers; 21 d. CBP officials impose a “gauntlet” and “charade” of procedures, 22 including a “ticketing” system, to discourage asylum seekers; 23 and e. 24 CBP officials coerce asylum seekers into denouncing any fear of persecution. 25 97. 26 Despite the complete lack of statistics or recordkeeping on CBP’s 27 failure to comply with the law, Human Rights First’s Report references more than 28 ATTORNEYS AT LAW LOS AN GE LES 29 See Crossing the Line, supra note 22. 29 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 32 of 55 Page ID #:32 1 125 cases of CBP turning away individuals and families seeking asylum at POEs 2 along the U.S.-Mexico border between November 2016 and April 2017. This is 3 likely a small fraction of the number of asylum seekers being illegally denied 4 access to the asylum process. 98. 5 In June 2017, Amnesty International, a non-profit human rights 6 organization, published a report on CBP’s ongoing practice of turning away 7 asylum seekers at the U.S.-Mexico border entitled “Facing Walls: USA and 8 Mexico’s Violations of the Rights of Asylum-Seekers.”30 In compiling the report, 9 Amnesty International interviewed more than 120 asylum seekers as well as 10 approximately 25 government officials and 40 civil society organizations. The 11 report documents numerous instances in which CBP officials denied asylum 12 seekers access to the asylum system at five different POEs along the U.S.-Mexico 13 border. The report details the following conduct: a. 14 CBP officials coerce asylum seekers into recanting their fear of 15 persecution on videotape and threaten to deport them back to 16 their home countries if they do not comply; b. 17 CBP officials tell asylum seekers that they will first have to get a “ticket” from Mexican authorities before seeking asylum; 18 c. 19 CBP officials coerce asylum seekers into signing a voluntary 20 return paper under the threat that, if they do not, then they will 21 be deported and will never be allowed into the United States; 22 and d. 23 CBP officials tell Mexican asylum seekers that there is no more asylum for Mexicans. 24 99. 25 From October 2016 to the present, the Women’s Refugee 26 Commission, a non-profit organization that advocates for women and children 27 fleeing violence and persecution, has investigated and documented numerous 28 ATTORNEYS AT LAW LOS AN GE LES 30 See Facing Walls, supra note 27. 30 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 33 of 55 Page ID #:33 1 instances in which CBP officials have turned asylum seekers away and refused to 2 process them at four POEs along the U.S.-Mexico border, including POEs in 3 Calexico, California; Nogales, Arizona; McAllen, Texas; and Laredo, Texas. The 4 Women’s Refugee Commission has documented the following conduct: 5 a. CBP officials tell asylum seekers there is no space for them; 6 b. CBP officials tell asylum seekers that the policies have changed and that they no longer qualify for asylum; 7 8 c. to remove asylum seekers from the POEs; 9 10 d. 13 CBP officials forcibly remove asylum seekers from the POEs; and 11 12 CBP officials threaten to call Mexican immigration authorities e. CBP officials tell asylum seekers to go away. 100. From October 2016 through the present, the Project in Dilley, which 14 provides pro bono legal services to mothers and children detained at the South 15 Texas Family Residential Center in Dilley, Texas, has identified more than 50 16 asylum-seeking mothers who were turned away by CBP officials at POEs along 17 the U.S.-Mexico border, including POEs in San Ysidro, California; McAllen, 18 Texas; Laredo, Texas; and Eagle Pass, Texas. The Project in Dilley has 19 documented the following conduct: 20 a. in effect; 21 22 b. c. 27 CBP officials tell asylum seekers they cannot seek asylum because there is no more space; 25 26 CBP officials tell asylum seekers that they have orders to send away everyone who is seeking asylum; 23 24 CBP officials tell asylum seekers that asylum law is no longer d. CBP officials threaten to deport asylum seekers to their home countries; and 28 ATTORNEYS AT LAW LOS AN GE LES 31 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 34 of 55 Page ID #:34 1 e. CBP officials use physical force to remove asylum seekers from 2 POEs, including by handcuffing them, throwing them to the 3 ground, shoving them and dragging them out of the POEs. 101. Since December 2015, representatives of Plaintiff Al Otro Lado have 4 5 accompanied more than 160 asylum seekers to the San Ysidro POE. Several 6 representatives have witnessed firsthand and/or otherwise documented the tactics 7 employed by CBP to prevent asylum seekers from accessing the U.S. asylum 8 process. Al Otro Lado representatives have documented the following conduct: a. 9 CBP officials tell asylum seekers they have to apply for asylum at the U.S. Consulate in Mexico; 10 b. 11 CBP officials tell asylum seekers that they must first obtain a “ticket” from Mexican immigration in order to seek asylum; 12 c. 13 CBP officials tell asylum seekers that they are not processing 14 asylum seekers at that POE and they must go to another POE to 15 be processed; d. 16 CBP officials tell asylum seekers that they cannot seek asylum at that time and must be put on a waiting list; 17 e. 18 CBP officials tell asylum seekers that they do not qualify for asylum; and 19 f. 20 CBP officials coerce asylum seekers into withdrawing their 21 asylum claims, including by threatening that they will be 22 deported if they do not do so. 102. On January 13, 2017, various non-governmental organizations 23 24 submitted an administrative complaint to DHS’ Office for Civil Rights and Civil 25 Liberties (“CRCL”) and Office of Inspector General (“OIG”). 31 The 26 31 See American Immigration Council, Complaint Re: U.S. Customs and Border Protection’s Systemic Denial of Entry to Asylum Seekers at Ports of Entry 28 on U.S.-Mexico Border, 1-2 (Jan. 13, 2017), https://www. 27 ATTORNEYS AT LAW LOS AN GE LES 32 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 35 of 55 Page ID #:35 1 administrative complaint provided specific examples of CBP turning away asylum 2 seekers at POEs along the U.S.-Mexico border and urged CRCL and OIG to 3 conduct a prompt and thorough investigation into this illegal practice and take 4 swift corrective action. 5 103. Despite this administrative complaint, Defendants’ illegal practice 6 continues. In fact, CBP has acknowledged its illegal practice in sworn testimony 7 before Congress. On June 13, 2017, in questioning before the House 8 Appropriations Committee, the Executive Assistant Commissioner for CBP’s OFO 9 admitted that CBP officials were turning away asylum applicants at POEs along 10 the U.S.-Mexico border. 32 11 12 V. A. 13 14 LEGAL BACKGROUND U.S. Law Requires that Individuals Be Provided a Meaningful Opportunity to Seek Asylum in the United States 104. U.S. law requires CBP to give individuals who present themselves at a 15 POE and express a desire to apply for asylum or a fear of persecution in their home 16 countries the opportunity to seek protection in the United States. 17 105. Specifically, the Immigration and Nationality Act (“INA”) and its 18 implementing regulations set forth a variety of ways in which such individuals may 19 seek protection in the United States. See, e.g., 8 U.S.C. § 1157 (admission of 20 refugees processed overseas); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1231(b)(3) 21 (restriction of removal to a country where individual’s life or freedom would be 22 threatened); 8 C.F.R. §§ 208.16-18 (protection under the Convention Against 23 Torture). 24 25 americanimmigrationcouncil.org/sites/default/files/general_litigation/cbp_ 26 systemic_denial_of_entry_to_asylum_seekers_advocacy_document.pdf. 32 Hearing on the Immigration and Customs Enforcement and Customs and 27 Border Protection F.Y. 2018 Budgets. Before the Subcomm. on Homeland Sec. of 28 the H. Appropriations Comm., 115th Cong. (2017) (statement of John Wagner, Executive Assistant Comm’r for CBP’s Office of Field Operations). ATTORNEYS AT LAW LOS AN GE LES 33 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 36 of 55 Page ID #:36 1 106. The INA provides that any noncitizen “who is physically present in 2 the United States or who arrives in the United States” has a statutory right to apply 3 for asylum, irrespective of such individual’s status. 8 U.S.C. § 1158(a)(1). The 4 INA also specifies processes that must be followed when an individual states a 5 desire to seek asylum or expresses a fear of returning to his or her home country. 6 See 8 U.S.C. § 1158(d)(1) (“The Attorney General shall establish a procedure for 7 the consideration of asylum applications filed [by individuals physically present in 8 the United States or who arrive in the United States].”). Under the INA, CBP must 9 either: 10 a. U.S.C. § 1225(b)(1)); or 11 12 Refer the asylum seeker for a credible fear interview (see 8 b. Place the asylum seeker directly into regular removal 13 proceedings by issuing a Notice to Appear (“NTA”), which will 14 then allow the asylum seeker to pursue his or her asylum claim 15 before an immigration judge (see 8 U.S.C. §§ 1125(b)(2), 1229, 16 1129a). 17 107. The U.S. government has admitted that the duty to allow a noncitizen 18 access to the asylum process is “not discretionary.” See, e.g., Federal Defendant’s 19 Reply Brief in Support of Motion for Summary Judgment and Dismissal for Lack 20 of Jurisdiction, cited in Munyua v. United States, No. 03-4538, 2005 U.S. Dist. 21 LEXIS 11499, at *16-19 (N.D. Cal. Jan. 10, 2005) (“[D]efendant acknowledges 22 that [the immigration officers] did not have the discretion to ignore a clear 23 expression of fear of return or to coerce an alien into withdrawing an application 24 for admission”). 25 108. CBP is responsible for the day-to-day operation of POEs along the 26 U.S.-Mexico border. CBP’s obligations include inspecting and processing 27 individuals who present themselves at POEs to enable them to pursue their claims 28 ATTORNEYS AT LAW LOS AN GE LES 34 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 37 of 55 Page ID #:37 1 for asylum in the United States. CBP officials themselves are not authorized to 2 evaluate, grant or reject an individual’s asylum claim. 3 109. All noncitizens arriving at POEs along the U.S.-Mexico border must 4 be inspected by CBP officials. See 8 U.S.C. § 1225(a)(3) (“All [noncitizens] . . . 5 who are applicants for admission or otherwise seeking admission . . . shall be 6 inspected by immigration officers.”) (emphasis added). During inspection, CBP 7 officials must determine whether a noncitizen may be admitted to the United 8 States. See 8 U.S.C. § 1182(a) (specifying grounds of inadmissibility). In order to 9 make this determination, CBP scrutinizes an individual’s entry documents. See 8 10 U.S.C. § 1181(a) (outlining documentation requirements for the admission of 11 noncitizens into the United States). Asylum seekers often flee their countries on 12 very short notice and thus frequently lack valid entry documents. Once a CBP 13 official makes a determination of inadmissibility, the individual becomes subject to 14 removal from the United States. 15 110. CBP officials must then place the noncitizen into either expedited 16 removal proceedings under 8 U.S.C. § 1225(b) or regular removal proceedings 17 under 8 U.S.C. § 1229. 18 111. Expedited removal proceedings involve a more streamlined process 19 than regular removal proceedings and are reserved for people apprehended at or 20 near the border. See 8 U.S.C. § 1225(b)(1)(A)(i) (permitting certain persons who 21 are seeking admission at the border to the United States to be expeditiously 22 removed without a full immigration judge hearing). However, Congress included 23 important safeguards in the expedited removal statute in an effort specifically to 24 protect asylum seekers. 25 112. The INA unequivocally states that if a noncitizen placed in expedited 26 removal proceedings “indicates either an intention to apply for asylum . . . or a fear 27 of persecution, the [CBP] officer shall refer the [noncitizen] for an interview by an 28 asylum officer.” 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added). The requirement ATTORNEYS AT LAW LOS AN GE LES 35 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 38 of 55 Page ID #:38 1 to refer an asylum seeker placed in expedited removal proceedings to an asylum 2 officer is mandatory. 3 113. Likewise, the applicable regulations promulgated under the INA 4 reinforce that if an individual in expedited removal proceedings asserts an intention 5 to apply for asylum or a fear of persecution, then “the inspecting officer shall not 6 proceed further with removal of the [noncitizen] until the [noncitizen] has been 7 referred for an interview by an asylum officer.” 8 C.F.R. § 235.3(b)(4) (emphasis 8 added). 9 114. Importantly, CBP officials must read a form to noncitizens subject to 10 expedited removal advising them of their right to speak to an asylum officer if they 11 express a desire to apply for asylum or a fear of returning to their home countries. 12 See 8 C.F.R. § 235.3(b)(2)(i); DHS Form I-867A. 13 115. Affirming that the CBP officials themselves are not authorized to 14 adjudicate asylum claims, the regulations specifically charge asylum officers from 15 U.S. Citizenship and Immigration Services with making initial determinations as to 16 whether there is a “significant possibility” that an individual can establish 17 eligibility for asylum. See 8 C.F.R. § 235.3(b)(4); see also 8 U.S.C. 18 § 1225(b)(1)(B)(ii). This is because asylum officers are trained in the often 19 complicated and evolving law surrounding asylum, and thus are uniquely 20 positioned to conduct such interviews, which themselves require particular 21 interviewing and assessment skills as well as comprehension of the social and 22 political contexts from which asylum seekers flee. In fact, the INA specifically 23 defines “asylum officer” as an immigration officer who “has had professional 24 training in country conditions, asylum law, and interview techniques comparable to 25 that provided to full-time adjudicators of applications under section 1158.” 8 26 U.S.C. § 1225(b)(1)(E). 27 116. Applicants who establish that they have a “significant possibility” of 28 proving their eligibility for asylum receive positive credible fear determinations. ATTORNEYS AT LAW LOS AN GE LES 36 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 39 of 55 Page ID #:39 1 They are taken out of the expedited removal system altogether and placed into 2 regular removal proceedings, where they have the opportunity to submit an asylum 3 application, develop a full record before an Immigration Judge, appeal to the Board 4 of Immigration Appeals and seek judicial review of an adverse decision. 8 U.S.C. 5 § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 235.6(a)(1)(ii), (iii). 6 117. Alternatively, CBP officials may place noncitizens directly into 7 regular removal proceedings by issuing an NTA. 8 U.S.C. §§ 1225(b)(2), 8 1229(a)(1), 1229a. Once in regular removal proceedings, the asylum seeker can 9 submit an asylum application and must receive a full hearing before an 10 Immigration Judge, file an administrative appeal with the Board of Immigration 11 Appeals and seek judicial review. 8 U.S.C. § 1229a(a)(1) (“An immigration judge 12 shall conduct proceedings for deciding the inadmissibility or deportability of an 13 alien.”). 14 118. Despite these prescribed procedures, CBP regularly employs a variety 15 of egregious tactics (including those described above) that have one unlawful 16 result: depriving Class Plaintiffs, and the asylum seekers they represent, of any 17 access to the asylum process, and stripping them of their right to seek asylum 18 under U.S. law. 19 B. 20 21 Defendants Have No Authority Under the INA to Turn a Noncitizen Seeking Admission Away at a POE 119. CBP’s authority is limited to that granted by Congress in the INA. 22 Nothing in the INA authorizes Defendants, through their officers and employees, 23 to turn away a noncitizen who seeks admission at a POE. 24 120. When inspecting a noncitizen who arrives at a POE, CBP officials 25 must follow the procedures mandated by Congress in 8 U.S.C. § 1225. Pursuant to 26 this section, CBP officials are limited to the following possible actions with respect 27 to any arriving noncitizen who is not clearly and beyond a doubt entitled to be 28 admitted: ATTORNEYS AT LAW LOS AN GE LES 37 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 40 of 55 Page ID #:40 1 a. Place arriving noncitizens who are inadmissible under one of 2 two grounds specified by statute in expedited removal 3 proceedings pursuant to 8 U.S.C. § 1225(b)(1)(A)(i); b. 4 Refer any noncitizen placed in expedited removal proceedings 5 who expresses either an intent to apply for asylum or a fear of 6 persecution if returned to his or her home country to an asylum 7 officer for a credible fear interview pursuant to 8 U.S.C. 8 §§ 1225(b)(1)(A)(ii), 1225(b)(1)(B); c. 9 Place “other” arriving noncitizens (i.e., those who are not 10 placed in expedited removal proceedings under 8 U.S.C. 11 § 1225(b)(1)(A) and who are neither crewmen or stowaways) in 12 removal proceedings under 8 U.S.C. § 1229a pursuant to 8 13 U.S.C. § 1225(b)(2); d. 14 Follow other removal procedures with respect to noncitizens 15 suspected of being inadmissible on terrorism or related security 16 grounds pursuant to 8 U.S.C. § 1225(c); or e. 17 Accept from the noncitizen a voluntary (i.e., non-coerced) 18 withdrawal of her application for admission pursuant to 8 19 U.S.C. § 1225(a)(4) and 8 C.F.R. § 235.4. 20 121. Defendants, through their officers and employees, act without 21 authority and in violation of the law when they turn away an individual at a POE. 22 23 24 C. Class Plaintiffs Are Entitled to Procedural Due Process Rights Under the Fifth Amendment to the U.S. Constitution 122. The Due Process Clause of the Fifth Amendment to the U.S. 25 Constitution prohibits the federal government from depriving any person of “life, 26 liberty, or property, without due process of law.” U.S. Const. Amend. V. In 27 addition, where Congress has granted statutory rights and has directed an agency to 28 establish a procedure for providing such rights, the Constitution requires the ATTORNEYS AT LAW LOS AN GE LES 38 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 41 of 55 Page ID #:41 1 government to establish a fair procedure and to abide by that procedure. In the 2 asylum context, U.S. law mandates that asylum seekers be provided with such 3 process. Multiple courts have recognized that such procedural rights are critical in 4 the asylum context and can result in life or death decisions, because applicants 5 wrongly denied asylum can be subject to death or other serious harm in their home 6 countries. See, e.g., Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (“The 7 basic procedural rights Congress intended to provide asylum applicants . . . are 8 particularly important because an applicant erroneously denied asylum could be 9 subject to death or persecution if forced to return to his or her home country.”). 10 123. The INA and its implementing regulations provide Class Plaintiffs 11 with the right to be processed at a POE and granted access to the asylum process. 12 See, e.g., 8 U.S.C. §§ 1158(a)(1), 1225(a)(3), 1225(b)(1)(A)(ii), 1225(b)(1)(B), 13 1225(b)(2). By systematically turning away asylum seekers presenting themselves 14 at POEs along the U.S.-Mexico border and thus denying them access to the asylum 15 process, Defendants have failed to comply with the due process procedures for 16 processing asylum seekers under the INA and its implementing regulations. 17 D. The Non-Refoulement Doctrine Under International Law 18 Requires Implementation and Adherence to a Procedure to 19 Access Asylum 20 124. The United States is obligated by a number of treaties and protocols to 21 adhere to the duty of non-refoulement – a duty that prohibits a country from 22 returning or expelling an individual to a country where he or she has a well23 founded fear of persecution and/or torture. 24 125. The primary treaty source for the duty of non-refoulement is the 1951 25 Convention on the Rights of Refugees. Article 33 of the Convention prohibits a 26 state from returning “a refugee in any manner whatsoever to the frontiers of 27 territories where his life or freedom would be threatened on account of his race, 28 religion, nationality, membership of a particular social group or political opinion.” ATTORNEYS AT LAW LOS AN GE LES 39 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 42 of 55 Page ID #:42 1 1951 Refugee Convention, Art. 33. The United States adopted the protections of 2 Article 33 by signing onto the 1967 Protocol Relating to the Status of Refugees, 3 which incorporated Articles 2-34 of the 1951 Convention. 4 126. The prohibition against refoulement is likewise central to other 5 treaties ratified by the United States, including the International Covenant on Civil 6 and Political Rights (“ICCPR”) and the Convention Against Torture (“CAT”), both 7 of which prohibit returning an individual to harm and obligate the United States to 8 implement and follow legal procedures to protect refugees’ right to non9 refoulement. See ICCPR, Art. 13; CAT, Art. 3. 10 127. In order to effectuate an asylum seeker’s right to non-refoulement, the 11 United States is obligated to implement and follow procedures to ensure that his or 12 her request for asylum be duly considered. The United States implemented this 13 legal obligation with the passage of the 1980 Refugee Act, which established a 14 procedure for a noncitizen physically present in the United States or at a land 15 border or POE to apply for asylum. See Refugee Act of 1980, Pub. L. No. 96-212, 16 § 201(b), 94 Stat. 102 (1980). 17 128. In practice, the duty of non-refoulement covers not only those 18 refugees and asylum seekers already present inside the country, but also those who 19 present themselves at POEs along the U.S. border. The duty requires U.S. officials 20 such as Defendants to consider the claims of those seeking to cross the U.S. border 21 and not to deny them access to a lawful process to present a claim for asylum. 22 129. The norm of non-refoulement is specific, universal and obligatory. It 23 is so widely accepted that it has reached the status of jus cogens – a norm not 24 subject to derogation. Indeed, in 1996, the United Nations Executive Committee 25 on the International Protection of Refugees explicitly concluded that the non26 refoulement principle had achieved the status of a norm “not subject to 27 derogation.” Executive Committee Conclusion No. 79, General Conclusion on 28 International Protection (1996). The principle was recognized as such in the 1984 ATTORNEYS AT LAW LOS AN GE LES 40 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 43 of 55 Page ID #:43 1 Cartagena Declaration on Refugees; was included in a portion of the Refugee 2 Convention from which derogation is not permitted; and has been recognized by 3 bodies, including the Inter-American Commission on Human Rights and the 4 Organization of American States General Assembly. 5 130. Defendants’ actions to deny Class Plaintiffs, and the asylum seekers 6 they represent, access to the U.S. asylum process violate their binding and 7 enforceable obligations under international law. 8 9 VI. CLASS ACTION ALLEGATIONS 131. Class Plaintiffs bring this action pursuant to Federal Rules of Civil 10 Procedure 23(a) and 23(b)(2) on behalf of themselves and all other persons 11 similarly situated. The proposed class is defined as follows: 12 All noncitizens who present themselves at a POE along the U.S.- 13 Mexico border, assert an intention to seek asylum or express a fear of 14 persecution in their home countries, and are denied access to the U.S. 15 asylum process by CBP officials. 16 132. The class is so numerous that joinder of all members is impracticable. 17 CBP’s misconduct toward asylum seekers at POEs along the U.S.-Mexico border 18 has been the focus of monitoring, reporting and advocacy by numerous well19 respected non-governmental organizations. These organizations have investigated 20 and documented hundreds of examples of asylum seekers being turned away by 21 CBP officials. Many more asylum seekers have likely been the victims of this 22 unlawful conduct as these abuses often go unreported. Asylum seekers who are 23 turned away at the border are continuously moving and relocating, also making 24 joinder impracticable. 25 133. There are questions of law and fact that are common to the class. The 26 class alleges common harms: a violation of the class members’ statutory right to 27 access the U.S. asylum process, procedural due process rights and right not to be 28 returned to countries where they fear persecution. The class members’ entitlement ATTORNEYS AT LAW LOS AN GE LES 41 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 44 of 55 Page ID #:44 1 to these rights is based on a common core of facts. All members of the proposed 2 class have expressed a fear of return to their home countries or a desire to apply for 3 asylum. These facts entitle all of them to the opportunity to seek asylum. Yet each 4 class member has been and likely will again be unlawfully denied access to the 5 U.S. asylum process by CBP. Moreover, all class members raise the same legal 6 claims: that U.S. immigration laws and the Constitution require CBP officials at 7 POEs to give them access to the asylum process. Their shared common facts will 8 ensure that judicial findings regarding the legality of the challenged practices will 9 be the same for all class members. Should Class Plaintiffs prevail, all class 10 members will benefit; each of them will be entitled to a lawful inspection at a POE 11 along the U.S.-Mexico border and an opportunity to seek asylum. 12 134. Class Plaintiffs’ claims are typical of the claims of the class. Class 13 Plaintiffs and class members raise common legal claims and are united in their 14 interest and injury. All Class Plaintiffs, like all class members, are asylum seekers 15 to whom CBP officials unlawfully denied access to the U.S. asylum process after 16 they presented themselves at POEs along the U.S.-Mexico border. Class Plaintiffs 17 and class members are thus victims of the same, unlawful course of conduct. 18 135. Class Plaintiffs are adequate representatives. Class Plaintiffs seek 19 relief on behalf of the class as a whole and have no interest antagonistic to other 20 members of the class. Class Plaintiffs’ mutual goal is to declare Defendants’ 21 challenged policies and practices unlawful and to obtain declaratory and injunctive 22 relief that would cure this illegality. Class Plaintiffs seek a remedy for the same 23 injuries as the class members, and all share an interest in having a meaningful 24 opportunity to seek asylum. Thus, the interests of the Class Plaintiffs and of the 25 class members are aligned. 26 136. Class Plaintiffs are represented by attorneys from the American 27 Immigration Council, the Center for Constitutional Rights and Latham & Watkins 28 LLP. Counsel have a demonstrated commitment to protecting the rights and ATTORNEYS AT LAW LOS AN GE LES 42 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 45 of 55 Page ID #:45 1 interests of noncitizens and, together, have considerable experience in handling 2 complex and class action litigation in the immigration field. Counsel have 3 represented numerous classes of immigrants and other victims of systematic 4 government misconduct in actions in which they successfully obtained class relief. 5 137. Defendants have acted or refused to act on grounds that are generally 6 applicable to Class Plaintiffs and the class. Defendants have failed to provide 7 Class Plaintiffs and class members with access to the U.S. asylum process. 8 Defendants’ actions violate Class Plaintiffs’ and class members’ statutory, 9 regulatory and constitutional rights to access to the asylum process. Declaratory 10 and injunctive relief are appropriate remedies. 11 138. In the absence of a class action, there is substantial risk that individual 12 actions would be brought in different venues, creating a risk of inconsistent 13 injunctions to address Defendants’ common conduct. 14 FIRST CLAIM FOR RELIEF 15 DECLARATORY RELIEF 16 AGAINST ALL DEFENDANTS 17 (VIOLATION OF THE RIGHT TO SEEK ASYLUM UNDER THE 18 IMMIGRATION AND NATIONALITY ACT) 19 139. Al Otro Lado and Class Plaintiffs reallege and incorporate by 20 reference each and every allegation contained in the preceding paragraphs as if set 21 forth fully herein. 22 140. INA § 208(a)(1) (8 U.S.C. § 1158(a)(1)) gives any noncitizen who is 23 physically present in or who arrives in the United States a statutory right to seek 24 asylum, regardless of such individual’s immigration status. 25 141. When a noncitizen presents himself or herself at a POE and indicates 26 an intention to apply for asylum or a fear of persecution, CBP officials must refer 27 the noncitizen for a credible fear interview under 8 U.S.C. § 1225(b)(1)(A)(ii) and 28 ATTORNEYS AT LAW LOS AN GE LES 43 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 46 of 55 Page ID #:46 1 8 C.F.R. § 235.3(b)(4), or, in accordance with 8 U.S.C. § 1225(b)(2), place the 2 noncitizen directly into regular removal proceedings under 8 U.S.C. § 1229(a)(1). 3 142. Class Plaintiffs presented themselves at U.S. POEs along the U.S.- 4 Mexico border and asserted an intention to apply for asylum and/or a fear of 5 persecution in their countries of origin. Nevertheless, CBP officials did not refer 6 Class Plaintiffs to an asylum officer for credible fear interviews pursuant to 8 7 U.S.C. § 1225(b)(1)(A)(ii), or, in accordance with 8 U.S.C. § 1225(b)(2), place 8 Class Plaintiffs directly into regular removal proceedings pursuant to 8 U.S.C. 9 § 1229(a)(1). 10 143. Instead, in direct contravention of the INA, CBP officials engaged in 11 unlawful tactics that prevented Class Plaintiffs from accessing the statutorily 12 prescribed asylum process and forced them to return to Mexico. 13 144. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border 14 was inflicted at the instigation, under the control or authority, or with the 15 knowledge, consent, direction or acquiescence of Defendants. 16 145. As a result of Defendants’ violations of the INA, Class Plaintiffs have 17 been damaged – through the denial of access to the asylum process and by being 18 forced to return to Mexico or other countries where they face threats of further 19 persecution. 20 146. As a result of Defendants’ violations of the INA, Plaintiff Al Otro 21 Lado has been damaged – namely its core mission has been frustrated and it has 22 been forced to divert substantial resources away from its programs to counteract 23 CBP’s unlawful practices at POEs along the U.S.-Mexico border. 24 147. Defendants’ practices have resulted and will continue to result in 25 irreparable injury, including a continued risk of violence and serious harm to Class 26 Plaintiffs and further violations of their statutory rights. Class Plaintiffs and Al 27 Otro Lado do not have an adequate remedy at law to redress the violations alleged 28 ATTORNEYS AT LAW LOS AN GE LES 44 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 47 of 55 Page ID #:47 1 herein, and therefore seek injunctive relief restraining Defendants from continuing 2 to engage in the unlawful practices and policies alleged herein. 3 148. Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201 4 and 2202, this Court may declare the rights or legal relations of any party in any 5 case involving an actual controversy. 6 149. An actual controversy has arisen and now exists between Class 7 Plaintiffs and Al Otro Lado, on one hand, and Defendants, on the other. Class 8 Plaintiffs and Al Otro Lado contend that Defendants’ conduct and practices, as 9 alleged in this Complaint, violate the INA. On information and belief, Defendants 10 contend that the conduct and practices are lawful. 11 150. Class Plaintiffs and Al Otro Lado therefore request and are entitled to 12 a judicial determination as to the rights and obligations of the parties with respect 13 to this controversy, and such a judicial determination of these rights and 14 obligations is necessary and appropriate at this time. 15 SECOND CLAIM FOR RELIEF 16 DECLARATORY RELIEF 17 AGAINST ALL DEFENDANTS 18 (VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT) 19 151. Al Otro Lado and Class Plaintiffs reallege and incorporate by 20 reference each and every allegation contained in the preceding paragraphs as if set 21 forth fully herein. 22 152. The Administrative Procedure Act (“APA”) (5 U.S.C. § 551, et. seq.) 23 authorizes suits by “[a] person suffering legal wrong because of agency action, or 24 adversely affected or aggrieved by agency action within the meaning of a relevant 25 statute.” 5 U.S.C. § 702. The APA also provides relief for a failure to act: “The 26 reviewing court shall . . . compel agency action unlawfully withheld or 27 unreasonably delayed.” 5 U.S.C. § 706(1). 28 ATTORNEYS AT LAW LOS AN GE LES 45 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 48 of 55 Page ID #:48 1 153. CBP officials have failed to take actions mandated by the following 2 statutes and implementing regulations in violation of the APA: 3 • 8 U.S.C. § 1158(a)(1) (“Any alien who is physically present in the 4 United States or who arrives in the United States . . . irrespective of 5 such alien’s status, may apply for asylum. . . .”) (emphasis added); 6 • 8 U.S.C. § 1225(a)(1)(3) (“All aliens . . . who are applicants for 7 admission or otherwise seeking admission or readmission to or 8 transit through the United States shall be inspected by 9 immigration officers.”) (emphasis added); 10 • 8 U.S.C. § 1225(b)(1)(A)(ii) (“If an immigration officer 11 determines that an alien . . . who is arriving in the United States . . . 12 is inadmissible . . . and the alien indicates either an intention to 13 apply for asylum under section 1158 of this title or a fear of 14 persecution, the officer shall refer the alien for an interview by an 15 asylum officer. . . .”) (emphasis added); 16 • 8 U.S.C. § 1225(b)(2) (“[I]n the case of an alien who is an 17 applicant for admission, if the examining immigration officer 18 determines that an alien seeking admission is not clearly and 19 beyond a doubt entitled to be admitted, the alien shall be detained 20 for a proceeding under section 1229a of this title.”); 21 • 8 C.F.R. § 235.3(b)(4) (“[T]he inspecting officer shall not proceed 22 further with removal of the alien until the alien has been referred 23 for an interview by an asylum officer. . . .”) (emphasis added); and 24 • 8 C.F.R. § 235.4 (“The alien’s decision to withdraw his or her 25 application for admission must be made voluntarily . . . .”). 26 154. In addition, CBP officials have acted in excess of their statutorily 27 prescribed authority and without observance of the procedures required by law in 28 violation of the APA. See 5 U.S.C. §§ 706(2)(C), (D). Congress mandated the ATTORNEYS AT LAW LOS AN GE LES 46 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 49 of 55 Page ID #:49 1 various procedures that Defendants are authorized to follow when inspecting 2 individuals who seek admission at POEs. See 8 U.S.C. § 1225. None of these 3 procedures authorizes a CBP official to turn back a noncitizen seeking asylum at a 4 POE. 5 155. In turning Class Plaintiffs and purported class members away at POEs 6 along the U.S.-Mexico border without following the procedures mandated by the 7 INA, CBP officials have acted and continue to act in excess of the authority 8 granted them by Congress and without observance of procedure required by law. 9 156. CBP’s treatment of Class Plaintiffs at the U.S.-Mexico border was 10 inflicted at the instigation, under the control or authority, or with the knowledge, 11 consent, direction or acquiescence of Defendants. 12 157. Defendants’ repeated and pervasive failure to act and the actions taken 13 in excess of their authority, which denied Class Plaintiffs access to the statutorily 14 prescribed asylum process, constitute unlawfully withheld or unreasonably delayed 15 agency action, is arbitrary and capricious, an abuse of discretion, and otherwise not 16 in accordance with the law, and therefore gives rise to federal jurisdiction and 17 mandates relief under the APA. 18 158. As a result of the acts constituting violations of the APA, Class 19 Plaintiffs have been damaged through the denial of access to the asylum process 20 and by being forced to return to Mexico or other countries where they face threats 21 of further persecution. 22 159. As a result of the acts constituting violations of the APA, Plaintiff Al 23 Otro Lado has been damaged – namely, its core mission has been frustrated and it 24 has been forced to divert substantial resources away from its programs to 25 counteract CBP’s unlawful practices at POEs along the U.S.-Mexico border. 26 160. Defendants’ practices have resulted and will continue to result in 27 irreparable injury, including a continued risk of violence and serious harm to Class 28 Plaintiffs and further violations of their statutory and regulatory rights. Class ATTORNEYS AT LAW LOS AN GE LES 47 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 50 of 55 Page ID #:50 1 Plaintiffs and Al Otro Lado do not have an adequate remedy at law to redress the 2 violations alleged herein, and therefore seek injunctive relief restraining 3 Defendants from continuing to engage in the unlawful practices alleged herein. 4 161. Al Otro Lado and Class Plaintiffs have exhausted all available 5 administrative remedies and have no adequate remedy at law. 6 162. Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201 7 and 2202, this Court may declare the rights or legal relations of any party in any 8 case involving an actual controversy. 9 163. An actual controversy has arisen and now exists between Class 10 Plaintiffs and Al Otro Lado, on one hand, and Defendants, on the other. Class 11 Plaintiffs and Al Otro Lado contend that Defendants’ conduct and practices, as 12 alleged in this Complaint, violate the APA. On information and belief, Defendants 13 contend that the conduct and practices are lawful. 14 164. Class Plaintiffs and Al Otro Lado therefore request and are entitled to 15 a judicial determination as to the rights and obligations of the parties with respect 16 to this controversy, and such a judicial determination of these rights and 17 obligations is necessary and appropriate at this time. 18 THIRD CLAIM FOR RELIEF 19 DECLARATORY RELIEF 20 AGAINST ALL DEFENDANTS 21 (VIOLATION OF PROCEDURAL DUE PROCESS) 22 165. Al Otro Lado and Class Plaintiffs reallege and incorporate by 23 reference each and every allegation contained in the preceding paragraphs as if set 24 forth fully herein. 25 166. The Due Process Clause of the Fifth Amendment to the U.S. 26 Constitution prohibits the federal government from depriving any person of “life, 27 liberty, or property, without due process of law.” U.S. Const. Amend. V. 28 ATTORNEYS AT LAW LOS AN GE LES 48 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 51 of 55 Page ID #:51 1 167. Congress has granted certain statutory rights to asylum seekers, such 2 as Class Plaintiffs and the asylum seekers they represent, and has directed DHS to 3 establish a procedure for providing such rights. The Due Process Clause thus 4 requires the government to establish a fair procedure and to abide by that 5 procedure. 6 168. As set forth above, the INA and its implementing regulations provide 7 Class Plaintiffs the right to be processed at a POE and granted access to the asylum 8 process. See 8 U.S.C. §§ 1158(a)(1), 1225(a)(3), 1225(b)(1)(A)(ii), 1225(b)(1)(B), 9 1225(b)(2); see also 8 C.F.R. § 235.3(b)(4). 10 169. By using a variety of tactics to turn away asylum seekers at POEs 11 along the U.S.-Mexico border, CBP officials have denied Class Plaintiffs access to 12 the asylum process and failed to comply with procedures set forth in the INA and 13 its implementing regulations. 14 170. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border 15 was inflicted at the instigation, under the control or authority, or with the 16 knowledge, consent, direction or acquiescence of Defendants. 17 171. By denying Class Plaintiffs access to the asylum process, Defendants 18 have violated Class Plaintiffs’ procedural due process rights under the Fifth 19 Amendment to the U.S. Constitution. 20 172. As a result of the Defendants’ violations of the Fifth Amendment to 21 the U.S. Constitution, Class Plaintiffs have been damaged through the denial of 22 access to the asylum process and by being forced to return to Mexico or other 23 countries where they face threats of further persecution. 24 173. As a result of Defendants’ violations of the Fifth Amendment to the 25 U.S. Constitution, Al Otro Lado has been damaged – namely, its core mission has 26 been frustrated and it has been forced to divert substantial resources away from its 27 programs to counteract CBP’s unlawful practices at POEs along the U.S.-Mexico 28 border. ATTORNEYS AT LAW LOS AN GE LES 49 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 52 of 55 Page ID #:52 1 174. Defendants’ practices have resulted and will continue to result in 2 irreparable injury, including a continued risk of violence and serious harm to Class 3 Plaintiffs and further violations of their constitutional rights. Class Plaintiffs and 4 Al Otro Lado do not have an adequate remedy at law to redress the violations 5 alleged herein, and therefore seek injunctive relief restraining Defendants from 6 engaging in the unlawful conduct and practices alleged herein. 7 175. An actual controversy exists between Class Plaintiffs and Al Otro 8 Lado, on one hand, and Defendants, on the other. Class Plaintiffs and Al Otro 9 Lado contend that Defendants’ conduct and practices, as alleged in this Complaint, 10 violate the Fifth Amendment to the United States Constitution. On information 11 and belief, Defendants contend that the conduct and practices are lawful. 12 176. Class Plaintiffs and Al Otro Lado therefore request and are entitled to 13 a judicial determination as to the rights and obligations of the parties with respect 14 to this controversy, and such a judicial determination of these rights and 15 obligations is necessary and appropriate at this time. 16 FOURTH CLAIM FOR RELIEF 17 DECLARATORY RELIEF 18 AGAINST ALL DEFENDANTS 19 (VIOLATION OF THE NON-REFOULEMENT DOCTRINE) 20 177. Al Otro Lado and Class Plaintiffs reallege and incorporate by 21 reference each and every allegation contained in the preceding paragraphs as if set 22 forth fully herein. 23 178. CBP officials have systematically denied Class Plaintiffs, and the 24 asylum seekers they represent, access to the asylum system, in violation of 25 customary international law reflected in treaties which the United States has 26 ratified and implemented: namely, the specific, universal and obligatory norm of 27 non-refoulement, which has also achieved the status of a jus cogens norm, and 28 ATTORNEYS AT LAW LOS AN GE LES 50 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 53 of 55 Page ID #:53 1 which forbids a country from returning or expelling an individual to a country 2 where he or she has a well-founded fear of persecution and/or torture. 3 179. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border 4 was inflicted at the instigation, under the control or authority, or with the 5 knowledge, consent, direction or acquiescence of Defendants. 6 180. Defendants’ conduct is actionable under the Alien Tort Statute, 28 7 U.S.C. § 1350, which authorizes declaratory and injunctive relief. 8 181. As a result of the acts constituting violations of the jus cogens norm of 9 non-refoulement, Class Plaintiffs have been damaged through denial of access to 10 the asylum process and by being forced to return to Mexico or other countries 11 where they face threats of further persecution. 12 182. As a result of the acts constituting violations of the norm of non- 13 refoulement, Al Otro Lado has been damaged – namely, its core mission has been 14 frustrated and it has been forced to divert substantial resources away from its 15 programs to counteract CBP’s unlawful practices at POEs along the U.S.-Mexico 16 border. 17 183. Defendants’ practices have resulted and will continue to result in 18 irreparable injury, including a continued risk of violence and serious harm to Class 19 Plaintiffs and further denials of the protections afforded to them under international 20 law. Class Plaintiffs and Al Otro Lado do not have an adequate remedy at law to 21 redress the violations alleged herein, and therefore seek injunctive relief restraining 22 Defendants from engaging in the unlawful conduct and practices alleged herein. 23 184. An actual controversy exists between Class Plaintiffs and Al Otro 24 Lado, on one hand, and Defendants, on the other. Class Plaintiffs and Al Otro 25 Lado contend that Defendants’ conduct and practices, as alleged in this Complaint, 26 violate the norm of non-refoulement. On information and belief, Defendants 27 contend that the conduct and practices are lawful. 28 ATTORNEYS AT LAW LOS AN GE LES 51 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 54 of 55 Page ID #:54 1 185. Class Plaintiffs and Al Otro Lado therefore request and are entitled to 2 a judicial determination as to the rights and obligations of the parties with respect 3 to this controversy, and such a judicial determination of these rights and 4 obligations is necessary and appropriate at this time. 5 6 PRAYER FOR RELIEF 186. WHEREFORE, Plaintiff Al Otro Lado and Class Plaintiffs 7 respectfully request that the Court: 8 a. Federal Rule of Civil Procedure 23(a) and 23(b)(2); 9 10 b. Appoint the undersigned as class counsel pursuant to Federal Rule of Civil Procedure 23(g); 11 12 Issue an order certifying a class of individuals pursuant to c. Issue a judgment declaring that Defendants’ policies, practices, 13 acts and/or omissions described herein give rise to federal 14 jurisdiction; 15 d. Issue a judgment declaring that Defendants’ policies, practices, 16 acts and/or omissions described herein violate one or more of 17 the following: 18 (1) The Immigration and Nationality Act, based on violations of 8 U.S.C. §§ 1158 and 1225; 19 (2) 20 The Administrative Procedure Act, based on violations of 8 U.S.C. §§ 1158, 1225 and 8 C.F.R. §§ 235.3, 235.4; 21 22 (3) The Due Process Clause of the Fifth Amendment; and 23 (4) The duty of non-refoulement under international law; 24 e. laws and regulations cited above; 25 26 Issue injunctive relief requiring Defendants to comply with the f. Issue injunctive relief prohibiting Defendants, and any of their 27 officers, agents, successors, employees, representatives, and 28 any and all persons acting in concert with them or on their ATTORNEYS AT LAW LOS AN GE LES 52 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 55 of 55 Page ID #:55 1 behalf, from engaging in the unlawful policies, practices, acts 2 and/or omissions described herein at POEs along the U.S.- 3 Mexico border; 4 g. Issue injunctive relief requiring Defendants to implement 5 procedures to provide effective oversight and accountability in 6 the inspection and processing of individuals who present 7 themselves at POEs along the U.S.-Mexico border and indicate 8 an intention to apply for asylum or assert a fear of persecution 9 in their home countries; 10 h. Award Plaintiffs their reasonable attorneys’ fees, costs and 11 other expenses pursuant to 28 U.S.C. § 2412, and other 12 applicable law; and 13 14 i. Grant any and all such other relief as the Court deems just and equitable. 15 Dated: July 12, 2017 16 17 18 LATHAM & WATKINS LLP Wayne S. Flick Manual A. Abascal James H. Moon Kristin P. Housh Robin A. Kelley 19 20 By /s/ Manuel A. Abascal Manuel A. Abascal 21 22 Attorneys for Plaintiffs 23 24 25 26 27 28 ATTORNEYS AT LAW LOS AN GE LES 53 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF