Noem v. Al Otro Lado

Preliminary Injunction: Intersection of the Turnback Policy and the Transit Ban

On November 19, 2019, the court provisionally certified a class consisting of “all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. POE before July 16, 2019, because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.” The court issued a preliminary injunction prohibiting the government from applying the Transit Ban to provisional class members and ordering them to apply pre-Transit Ban practices in processing these individuals’ asylum applications. 

On October 30, 2020, the district court granted the plaintiffs’ subsequent motion to clarify the preliminary injunction, finding: (1) that the government must make all reasonable efforts to identify class members; (2) that the injunction covers class members who had the Transit Ban applied to their cases and received final asylum denial orders before the injunction issued and while it was stayed; and (3) that DHS and the Executive Office for Immigration Review (EOIR) must take affirmative steps to reopen or reconsider past determinations that potential class members were ineligible for asylum based on the Transit Ban (Clarification Order).

On December 17, 2020, the government issued a final agency rule on the Transit Ban, which was scheduled to go into effect on January 19, 2021. On January 6, 2021, the plaintiffs sought a temporary restraining order blocking the application of the Transit Ban final rule on the same basis as the preliminary injunction enjoining the application of the interim final rule to provisional class members.  That motion was granted on January 18, 2021. The final rule was later preliminarily enjoined in its entirety.

Motions For Class Certification and Summary Judgment

On August 6, 2020, the district court granted the plaintiffs’ motion for class certification in the case in chief, allowing the case to proceed on behalf of a class consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of [CBP] officials on or after January 1, 2016.” The court also certified a subclass consisting of “all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.”

On September 2, 2021, the district court partially granted summary judgment for the plaintiffs, holding that the government violated its statutory duties under 8 U.S.C. § 1158(a)(1) and § 1225, as well as its due process obligations, by turning back asylum seekers at POEs without inspecting and processing them.

On August 5, 2022, the district court issued a remedies opinion and separately granted the plaintiffs’ request to convert the court’s earlier preliminary injunction of the transit ban final rule into a permanent injunction. The permanent injunction prohibits the government from applying the Asylum Ban to class members and entitles class members to seek asylum based on the law and procedures in place prior to July 16, 2019—the effective date of the Transit Ban.

Ninth Circuit Court of Appeals Proceedings

On December 20, 2022, the government appealed the district court’s order. The plaintiffs cross-appealed certain aspects of the district court’s ruling as well. The court then requested supplemental briefing and referred the parties to mediation. On May 30, 2024, the case was released from the mediation program. On June 20, 2024, Plaintiffs filed a notice with the court of the June 4, 2024, Presidential Proclamation, Securing the Border, and DHS and DOJ’s June 7, 2024, interim final rule, new measures which restrict asylum eligibility when the Proclamation is in effect. The district court’s order remains in effect while the appeals are pending. CGRS and partner organizations are challenging the new restrictions on asylum eligibility in separate litigation.

On October 23, 2024, the Ninth Circuit largely affirmed the district court’s ruling that held unlawful the government’s systematic turnbacks – or “metering” – of people seeking asylum at ports of entry along the U.S.-Mexico border.

On December 27, 2024, plaintiffs requested an indicative ruling on their motion to vacate the permanent injunction as to unidentified class members. Plaintiffs argued that the purpose of the injunction—identifying potential class members who had been improperly subjected to the Asylum Transit Ban—has been substantially satisfied, and that the injunction is unlikely to provide further relief, but imposes continuing burdens on the parties. On February 3, 2025, the government opposed plaintiffs’ request and motion.

Neither party requested rehearing, but on January 8th, 2025, a judge of the Ninth Circuit called for a vote to determine whether the case should be reheard en banc. On May 14, 2025, the Ninth Circuit issued an order amending their earlier opinion and denying rehearing en banc. The amended opinion continues to largely affirm the district court’s ruling in favor of Plaintiffs.

Remanded Proceedings Before the District Court

On June 4, 2025, in response to plaintiffs’ request, the district court vacated the portion of the permanent injunction that required parties to identify new class members. Defendants did not oppose vacatur of the permanent injunction.

Proceedings in the Supreme Court of the United States

On July 1, 2025, the government filed a petition for a writ of certiorari. Plaintiffs filed their brief in opposition on October 8, 2025.

On November 17, 2025, the Supreme Court granted the government's petition.

The case is scheduled for oral argument on March 24, 2026.