De Abadia-Peixoto et al v. United States Department of Homeland Security et al

Filing 208

PRELIMINARY APPROVAL ORDER. Fairness Hearing set for 4/10/2014 01:30 PM.Signed by Judge Richard Seeborg on 1/23/14. (cl, COURT STAFF) (Filed on 1/23/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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UELIAN DE ABADIA-PEIXOTO, et al.,

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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT OF
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HOMELAND SECURITY, RAND BEERS,
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Acting Secretary of the United States Department )
of Homeland Security, UNITED STATES
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IMMIGRATION AND CUSTOMS
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ENFORCEMENT, JOHN SANDWEG, Acting
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Director of U.S. Immigration and Customs
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Enforcement, TIMOTHY AITKEN, Field Office )
Director of the San Francisco District of U.S.
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Immigration and Customs Enforcement, ERIC H. )
HOLDER, JR., United States Attorney General, )
THE EXECUTIVE OFFICE FOR
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IMMIGRATION REVIEW, and JUAN P.
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OSUNA, Director of the Executive Office for
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Immigration Review,
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Defendants.
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[PROPOSED] PRELIMINARY APPROVAL ORDER
3:11-CV-4001 RS

Case No.: 3:11-cv-4001 RS
CLASS ACTION
[PROPOSED] PRELIMINARY
APPROVAL ORDER
Date:
Time:
Judge:
Ctrm:

January 23, 2014
1:30 p.m.
Honorable Richard Seeborg
3, 17th Floor

Action Filed: August 15, 2011

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This matter having come before the Court on Plaintiffs’ unopposed motion for

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preliminary approval of the proposed settlement of the above-captioned class action (the

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“Action”) pursuant to the parties’ settlement agreement (“Agreement”), and having duly

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considered the papers and arguments of counsel, the Court hereby finds and orders as follows:

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1.

Unless defined herein, all defined terms in this Order shall have the respective

meanings set forth in the Agreement.
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The Court has conducted a preliminary evaluation of the Agreement for fairness,

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adequacy, and reasonableness. Based on this preliminary evaluation, the Court finds that (i)

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there is cause to believe that the Agreement is fair, reasonable, and adequate, and within the

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range of possible approval, (ii) the Agreement has been negotiated in good faith at arm’s-length

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between experienced attorneys familiar with the legal and factual issues of this case, and (iii) the

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notice of the material terms of the Agreement to members of the Settlement Class for their

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consideration and reaction is warranted. Therefore, the Court grants preliminary approval of the

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Agreement.

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3.

On April 10, 2014 at 1:30 p.m. , this Court will hold a hearing on the fairness,

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adequacy, and reasonableness of the Agreement (“Fairness Hearing”) and will determine

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whether final approval of the Agreement should be granted via entry of the Proposed Final Order

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and Stipulated Dismissal attached as Exhibit D to the Agreement.

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4.

The Court approves the form and manner of giving direct notice to the Settlement

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Class by: (i) sending notice via U.S. mail and/or email to all organizations included on the list of

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low-fee and free legal services provided to respondents in removal proceedings before the San

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Francisco Immigration Court; (ii) sending notice via email to the list-serv for the Northern

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California chapter of AILA (American Immigration Lawyers Association) and the Northern

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California chapter of the National Lawyers’ Guild; (iii) posting notice in areas visible to

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immigration detainees in all facilities holding respondents appearing before the San Francisco

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Immigration Court; and (iv) posting notice on the websites of EOIR, ICE, ACLU of Northern

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California, and Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. All

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postings will be in English, Spanish, Chinese, and Punjabi, and all parties will provide alternate
-1[PROPOSED] PRELIMINARY APPROVAL ORDER
3:11-CV-4001 RS

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format copies of the notice upon request. Notice will be posted/distributed by the parties within

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seven (7) working days of the date of entry of the Preliminary Approval Order, and shall remain

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posted for no less than thirty (30) days. The parties will submit declarations to the Court as part

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of the motion for Final Approval confirming that notice has been issued according to this

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paragraph. The notice in form, method, and content complies with the requirements of Rule 23

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and due process, and constitutes the best notice practicable under the circumstances. The Court

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hereby directs the parties to complete all aspects of the notice process no later than January 30,

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2014 and in accordance with the terms of the Agreement.

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5.

Any member of the Settlement Class may object to final approval of the

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Agreement by submitting his or her objection (“Objection”) to Class Counsel in writing, via

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regular or electronic mail, or by leaving a message with his or her Objection via telephone to the

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number previously provided by Defendants to facilitate contact with Class Counsel from persons

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within immigration detention facilities; provided, however, that all Objections must be received

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by Class Counsel no later than twenty-one (21) days prior to the Fairness Hearing. Class

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Counsel shall file any Objections with the Court no later than fourteen (14) days prior to the

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Fairness Hearing and will forward copies of any Objections to Defendants’ counsel within five

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(5) calendar days of receipt. A Settlement Class member who objects to the Settlement need not

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appear at the Fairness Hearing for his or her objection to be considered by the Court; however,

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any additional papers, briefs, pleadings, or other documents that any objector would like the

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Court to consider must be filed with the Court, with a copy postmarked to the parties’ counsel,

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no later than twenty-one (21) days prior to the final approval hearing. All papers filed by an

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objector shall include the caption De Abadia-Peixoto, et al., No. 3:11-cv-4001 RS, and provide:

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(i) the Settlement Class member’s full name and current address; (ii) a signed declaration that he

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or she believes himself or herself to be a member of the Settlement Class; (iii) the specific

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grounds for the objection; (iv) all documents or writings that such Settlement Class member

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desires the Court to consider; and (vii) a notice of intention (if any) to appear at the Fairness

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Hearing.

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-2[PROPOSED] PRELIMINARY APPROVAL ORDER
3:11-CV-4001 RS

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6.

Any Settlement Class member who fails to object in the manner prescribed herein

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shall be deemed to have waived his or her objections and forever be barred from making any

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such objections in this Action. While the declaration described in subparagraph 5(ii) is prima

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facie evidence that the objector is a member of the Settlement Class, the parties may take

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discovery regarding the matter, subject to Court approval. If an objector does not submit his or

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her Objection in accordance with the deadline and procedure set forth in the notice, and the

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Settlement Class member is not granted relief by the Court, the Settlement Class member will be

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deemed to have waived his or her right to be heard at the Fairness Hearing.

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7.

The Agreement, and the proceedings and statements made pursuant to the

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Agreement or papers filed relating to the approval of the Agreement, and this Order, shall not be

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offered or received against any party as evidence of, or construed as or deemed to be evidence

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of, any presumption, concession, or admission by any of the parties of the truth or falsity of any

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fact, claim, defense, or argument that was or could have been asserted in the Action, or any

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admission of liability, negligence, fault, or wrongdoing by any party, or referred to in any other

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way for any other reason as against the parties to the Agreement, in any other civil, criminal, or

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administrative action or proceedings, other than in proceedings to enforce the Agreement.

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Nothing contained herein, however, shall be construed to prevent the parties from offering the

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Agreement into evidence for the purposes of enforcement of the Agreement.

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IT IS SO ORDERED.

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Dated: January 23, 2014
Honorable Richard Seeborg
United States District Judge

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-3[PROPOSED] PRELIMINARY APPROVAL ORDER
3:11-CV-4001 RS