CSL, plasma companies win reversal on suit over Border Patrol blockade of visas for paid collections
Last June, US Customs and Border Protection told Mexicans seeking to sell their blood plasma at border sites run by companies such as CSL that they could no longer enter the US with “B‑1” business visitor visas.
The decision delivered a blow to the companies running the sites, which until then, relied on the Mexican donors to cross into the US and sell plasma at dozens of border facilities in exchange for about $50 per donation. Companies such as CSL and Grifols, which sued CBP, estimate that their cross-border donations are responsible for about 5-10% of all US plasma collections.
Even during the beginning of the pandemic, when B‑1 visa holders were generally prohibited from crossing the border, the Department of Homeland Security designated plasma donors as “essential” and plasma collection a “critical infrastructure industry.”
But last June’s decision from CBP to no longer allow the visas was based on the government agency’s determination that donating plasma should be considered “labor for hire.” The plasma companies, however, maintained that selling plasma is a legitimate B‑1 business activity and that they have relied on CBP’s prior longstanding practice of allowing the B-1 visas.
While the companies previously lost their suit over the matter due to lack of standing, the US Court of Appeals for the DC Circuit on Tuesday overturned that prior ruling. Judge Neomi Rao explains her opinion:
The district court concluded the plasma companies were not within the ‘zone of interests’ of the B-1 business visitor classification set out in the Immigration and Nationality Act (‘INA’) and sua sponte dismissed the suit for lack of subject matter jurisdiction. We reverse. Whether the plasma companies are within the statutory zone of interests is a merits issue, not a jurisdiction alone… Moreover, the plasma companies’ claims easily fit within the zone of interests of the B‑1 classification, and therefore they have a cause of action under the APA.
She also notes how the B‑1 business visitor classification is designed to protect both American workers facing competition from immigrant labor and American businesses benefitting from transactions with B‑1 business visitors. And with that in mind, Judge Rao explains how the plasma companies,
easily clear the low hurdle of pleading injuries within the zone of interests protected by the B‑1 classification. The plasma companies depend heavily on B‑1 visitors in the border region. They have invested hundreds of millions of dollars to construct and staff dozens of facilities geared toward collecting plasma from Mexican donors. The plasma companies made these investments in reliance on the large number of Mexicans who cross the border to sell plasma: they allege Mexican B‑1 visitors “comprise the majority of donors at most of the border centers” and that the domestic population of the border areas could not support the substantial plasma collection activities of these facilities.
Moving forward, the appeals court said that the prior decision should be remanded for further proceedings consistent with this opinion.
Greg Boss, EVP and group general counsel at CSL Limited told Endpoints:
We are encouraged by the United States Court of Appeals for the District of Columbia Circuit’s ruling that plasma companies have the legal right to challenge the Customs and Border Protection (CBP) ban on plasma donation by Mexican nationals entering the country on a B1/B2 visa. We are also pleased that the Court of Appeals’ decision acknowledges the importance of Mexican plasma donors in providing this critical resource necessary to manufacture life-saving, plasma-derived therapies.
We await further instruction from the United States District Court and will continue to challenge the plasma ban and secure a more stable plasma supply for the hundreds of thousands of patients dependent on plasma-derived therapies.
Editor’s note: Updated with comment from CSL.