Ms. L. v. U.S. Immigration and Customs Enforcement et al

Filing 13

MOTION for Permanent Injunction by Ms. L.. (Attachments: #1 Memo of Points and Authorities Memorandum in Support of Motion for Preliminary Injunction and Declarations)(Gelernt, Lee) (aef).

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Lee Gelernt
Judy Rabinovitz
Anand Balakrishnan
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Ms. L.,

Case No. 18-cv-00428-DMS-MDD
Petitioner-Plaintiff,

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v.

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U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field
Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,

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Respondents-Defendants.

Date Filed: March 2, 2018

PETITIONER-PLAINTIFF’S
MEMORANDUM IN
SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION

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Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

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TABLE OF CONTENTS
INTRODUCTION ...................................................................................................... 1
STATEMENT OF FACTS ......................................................................................... 2
ARGUMENT .............................................................................................................. 4
I. MS. L. IS LIKELY TO SUCCED ON THE MERITS OF HER CLAIMS. .... 5

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A. The Government’s Separation of Ms. L. and Her Child Violates Due
Process. ........................................................................................................ 5

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1. Ms. L. is protected by due process......................................................... 5

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2. The separation of Ms. L. and her child is unconstitutional because
there is no evidence of abuse or neglect. ............................................... 8

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B. The Government’s Separation of Petitioner and Her Child Violates the
APA Because It Is Arbitrary and Capricious. ........................................... 10
II. SEPARATION OF PETITIONER FROM HER DAUGHTER HAS
CAUSED AND WILL CONTINUE TO CAUSE IRREPARABLE
INJURY. ......................................................................................................... 11

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III. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST WEIGH
DECIDELY IN FAVOR OF REUNITING PETITIONER WITH HER
DAUGHTER. ................................................................................................. 14

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CONCLUSION......................................................................................................... 16

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TABLE OF AUTHORITIES

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Cases
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011)................................................................................ 4
Amoco Prod. Co. v. Village of Gambell,
480 U.S. 531 (1987) ............................................................................................. 15
Arc of Cal. v. Douglas,
757 F.3d 975 (9th Cir. 2014) ............................................................................ 4, 15
Arrington v. Daniels,
516 F.3d 1106 (9th Cir. 2008).............................................................................. 10
Chi Thon Ngo v. INS,
192 F.3d 390 (3d Cir. 1999) ................................................................................... 7
Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin.,
538 F.3d 1172 (9th Cir. 2008).............................................................................. 10
Duchesne v. Sugarman,
566 F.2d 817 (2d Cir. 1977) ................................................................................... 8
Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................................. 11
Encinco Motorcars, LCC v. Navarro,
136 S. Ct. 2117 (2016) ......................................................................................... 10
Halet v. Wend Investment Co,
672 F.2d 1305 (9th Cir. 1982)................................................................................ 9
Hawaii v. Trump,
878 F.3d 662 (9th Cir. 2017) ................................................................................ 15
Heartland Acad. Comm. Church v. Waddle,
427 F.3d 525 (8th Cir. 2005) .................................................................................. 9
Int’l Refugee Assistance Project v. Trump,
--- F.3d ---, 2018 WL 894413 (4th Cir. Feb. 15, 2018) ................................. 13, 14
J.B. v. Washington County,
127 F.3d 919 (10th Cir.1997) ............................................................................... 13
Jordan by Jordan v. Jackson,
15 F.3d 333 (4th Cir. 1994) .................................................................................... 9
Kaszuba v. Fidelity Nat’l Default Servs.,
2011 WL 601525 (S.D. Cal. Feb. 10, 2011) (Sabraw, J.) ...................................... 4
Kwai Fun Wong v. United States,
373 F.3d 952 (9th Cir. 2004) .......................................................................... 6, 7, 8

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Lassiter v. Dep’t of Social Servs.,
452 U.S. 18 (1981) ................................................................................................. 9
Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001) .................................................................................. 8
Leiva-Perez v. Holder,
640 F.3d 962 (9th Cir. 2011) ................................................................................ 12
Lynch v. Cannatella,
810 F.2d 1363 (5th Cir.1987) ................................................................................. 7
Mathews v. Diaz,
426 U.S. 67 (1976) ................................................................................................. 5
McLaughlin v. Pernsley,
876 F.2d 308 (3d Cir. 1989) ................................................................................. 13
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) .......................................................................... 11, 15
Mt. St. Helens Mining & Recovery Ltd. Partnership v. United States,
384 F.3d 721 (9th Cir. 2004) ................................................................................ 10
Nicolson v. Pappalardo,
685 F.Supp.2d 142 (D. Me. 2010) ....................................................................... 13
Plyler v. Doe,
457 U.S. 202 (1982) ............................................................................................... 5
Rodriguez v. Robbins,
715 F.3d 1127 (9th Cir. 2013).............................................................................. 15
Rodriguez-Fernandez v. Wilkinson,
654 F.2d 1382 (10th Cir. 1981).............................................................................. 7
Rosales-Garcia v. Holland,
322 F.3d 386 (6th Cir. 2003) (en banc), cert. denied, 539 U.S. 941 (2003).......... 7
Sammartano v. First Judicial District Court,
303 F.3d 959 (9th Cir. 2002) ................................................................................ 15
Santosky v. Kramer,
455 U.S. 745 (1982) ............................................................................................... 8
Southerland v. City of New York,
680 F.3d 127 (2d Cir. 2012) ................................................................................... 9
Stanley v. Illinois,
405 U.S. 645 (1972) ....................................................................................... 11, 12
Troxel v. Granville,
530 U.S. 57 (2000) (plurality op.) .......................................................................... 8
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United States v. Loy,
237 F.3d 251 (3d Cir. 2001) ................................................................................... 9
United States v. Wolf Child,
699 F.3d 1082 (9th Cir. 2012)................................................................................ 9
Warsoldier v. Woodford,
418 F.3d 989 (9th Cir. 2005) ................................................................................ 11
Winter v. Nat’l Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................... 4
Wong Wing v. United States,
163 U.S. 228 (1896) ............................................................................................... 6
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ............................................................................................... 6
Zadvydas v. Davis,
533 U.S. 678 (2001) (Scalia, J., dissenting) ........................................................... 6
Statutes
5 U.S.C. § 706(2)(A) ................................................................................................ 10
Other Authorities
Policy Statement, Am. Acad. of Pediatrics, Detention of Immigrant Children, Mar.
2017, http://pediatrics.aappublications.org/content/early/2017/03/09/peds.20170483 ....................................................................................................................... 12

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INTRODUCTION

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This case involves the government’s forcible separation of Petitioner Ms. L.,
a Congolese asylum seeker, from her daughter, S.S. 1 S.S., a seven (7) year-old

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little girl, was taken from her mother nearly four months ago, frantically screaming

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that she did not want to leave her mommy. Since that time, S.S. has been held in a

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facility in Chicago (where she celebrated her seventh birthday alone), while Ms. L.
has been detained in San Diego. There was no accusation that Ms. L. was an unfit
parent, much less that she had engaged in abusive behavior toward her daughter.

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Nor has Ms. L. ever even been told why her petrified daughter was taken from her.

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Ms. L. brings this action to reunite with her daughter. The government can release

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both mother and daughter to a non-governmental shelter specializing in the care of

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asylum-seeking families. Alternatively, if the government feels compelled to

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continue detaining this mother and small child, it can detain them together in a

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government family detention center. But one way or the other the government may

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not continue to keep them apart.
Ms. L. has a substantial likelihood of prevailing on the merits of her due

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process claim. It has long been settled that all “persons” are entitled to due process

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under the Fifth Amendment, regardless of their immigration status. It has likewise

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been established for more than a century that the Due Process Clause prohibits the

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As set forth in Petitioner’s previously-filed motion to proceed under a pseudonym,
Ms. L. is using only her initial for fear that exposure will result in harm to her. As a
minor, her daughter is also proceeding under her initials. A photograph of S.S. is
attached to the (restricted) declaration of Elizabeth Lopez. See Ex. 11.
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government from separating a parent from her child absent the most compelling

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reasons. And the only reason the law recognizes as sufficiently compelling to tear a

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young child away from her parent is to protect the child in extreme circumstances

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when staying with the parent endangers the child. That has not even been alleged

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here, much less demonstrated. The government’s forcible separation also violates

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the Administrative Procedure Act, because the government has provided no reason

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at all for taking the drastic step of separating Petitioner from her child.

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Ms. L. also satisfies the other preliminary injunction factors. Any

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conceivable harm that the government might try to claim in this case would be far

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outweighed by the ongoing and potentially permanent harm to this 7 year-old little

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girl. The American Academy of Pediatrics has roundly denounced the recent

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practice of separating immigrant children from their parents, and nine respected

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medical experts from around the country have submitted declarations in this case

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similarly condemning the practice, noting the overwhelming scientific consensus

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that separating young children from their parents causes severe and potentially

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lasting damage. Ms. L. thus respectfully requests that the Court preliminarily

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enjoin the government from continuing to keep her away from her daughter, and

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allow them to be reunited in either a governmental or non-governmental facility.
STATEMENT OF FACTS
Ms. L. and her daughter fled their home in the Democratic Republic of
Congo in fear for their lives. Ms. L. is Catholic so sought shelter with S.S. in a
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church for a few days before eventually escaping the Congo. Upon arriving in the

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United States, Ms. L. and her daughter presented themselves to border guards at the

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San Ysidro Port of Entry on November 1, 2017. Although their native language is

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Lingala, they were able to communicate to the border guards in broken Spanish that

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they feared returning to their country. Based on her expression of fear of returning

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to the Congo, Ms. L. was referred for an initial asylum screening interview (called a

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“credible fear interview”). Because the asylum officer determined that she had a

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significant possibility of ultimately obtaining asylum, she was placed into full

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immigration proceedings to formally apply for asylum, a lengthy process. See Ms.

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L. Decl., Ex. 10 ¶ 2; Lopez Decl., Ex. 9 ¶ 4.

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For approximately the first 4 days after arriving in the United States, Ms. L.

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and S.S. were detained together, in what Ms. L. understood to be some sort of

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motel. They were then brought to an immigration office and placed into separate

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rooms. Ms. L. heard her daughter frantically screaming that she did not want to

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leave her mommy. That is the last time Ms. L. saw her daughter. Since that day,

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Ms. L. has been detained in the Otay Mesa Detention Center in the San Diego area.

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Her 7 year-old daughter was sent to Chicago, where she has remained in a facility

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ever since, without her mother or anyone else she knows. Ms. L. was not told why

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her daughter was taken from her or where she had been sent. About four days later,

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the government finally arranged a phone call with S.S. Since that first call, there

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have only been a handful of additional calls over the almost 4 months S.S. and her
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mother have been separated (and not a single video conference so that S.S. can

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actually see her mother). S.S. cries during these calls and is scared, both for herself

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and her mother, repeatedly asking how her mother is doing in prison. Ms. L. is

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likewise scared and depressed, constantly worried about her daughter, making it

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difficult for her to eat or sleep. See Ms. L. Decl., Ex. 10 ¶¶ 3-6.

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The government has never offered any reason why Ms. L.’s daughter was
taken from her. Yet, almost 4 months later, 7 year-old S.S. remains detained 2,000
miles away in Chicago, without her mother.
ARGUMENT

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To obtain a preliminary injunction, a plaintiff must establish (1) “that he is

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likely to succeed on the merits,” (2) “that he is likely to suffer irreparable harm in

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the absence of preliminary relief,” (3) “that the balance of equities tips in his

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favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat’l Res.

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Def. Council, Inc., 555 U.S. 7, 20 (2008). Courts evaluate these factors on a

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“sliding scale.” Arc of Cal. v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014)

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(quotation marks omitted). A “stronger showing of irreparable harm to plaintiff

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might offset a lesser showing of likelihood of success on the merits.” Alliance for

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the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Thus, where the

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balance of hardships “tips sharply towards the plaintiff,” the plaintiff need only

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demonstrate “serious questions going to the merits.” Kaszuba v. Fidelity Nat’l

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Default Servs., 2011 WL 601525, at *1 (S.D. Cal. Feb. 10, 2011) (Sabraw, J.)
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(quotation marks omitted).

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I. MS. L. IS LIKELY TO SUCCED ON THE MERITS OF HER CLAIMS.

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Ms. L. is likely to succeed on her due process claim. See infra Section A.

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She is also likely to succeed on her “arbitrary and capricious” claim under the

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Administrative Procedure Act (APA). See infra Section B. Accordingly, this case

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can be decided on either constitutional or non-constitutional grounds.2

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A.

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The Government’s Separation of Ms. L. and Her Child Violates
Due Process.

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The Fifth Amendment applies to all “persons” and thus applies to Ms. L. See

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infra Section A.1. And the separation of Ms. L. from her daughter patently violates

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substantive due process because there has been no allegation, much less evidence,

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that Ms. L. is an unfit mother. See infra Section A.2.

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Ms. L. is protected by due process.

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The Due Process Clause, by its terms, applies to any “person,” not just

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citizens. And the Supreme Court has further held that the Clause applies to all

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noncitizens. See Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even aliens

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whose presence in this country is unlawful, have long been recognized as ‘persons’

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guaranteed due process of law by the Fifth and Fourteenth Amendments.”);

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Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“Even one whose presence in this

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country is unlawful, involuntary, or transitory is entitled to that constitutional

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At this time, Ms. L. is not moving on her two other claims in the complaint: that
her separation violates the asylum statutes (Count II), and that she has a right to
release under ICE’s parole guidelines (Count IV).
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protection.”); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (explaining

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that “all persons within the territory of the United States are entitled to the

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protection” the Due Process Clause); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)

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(explaining that due process protections are “universal in their application, to all

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persons within the territorial jurisdiction”).

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The fact that Ms. L. and S.S. presented themselves at a port of entry and did

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not enter the country is of no consequence for purposes of the due process analysis

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in this case. Individuals who present themselves at a port of entry are considered

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“arriving” noncitizens and lack certain procedural due process rights to challenge

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their exclusion from the country. See, e.g., Kwai Fun Wong v. United States, 373

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F.3d 952, 971-72 (9th Cir. 2004). Here, however, Ms. L.’s right to remain with her

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daughter is a substantive due process right, and has nothing to do with her

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eligibility to be formally admitted into the United States. And there is no question

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that all persons, whether arriving or not, have substantive due process rights.

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Indeed, as Justice Scalia pointed out, if arriving noncitizens, who are physically on

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U.S. soil, lacked substantive due process rights, it would mean border agents could

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literally do anything, including “tortur[ing]” such individuals. Zadvydas v. Davis,

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533 U.S. 678, 704 (2001) (Scalia, J., dissenting) (“I am sure [that people with no

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right to enter the country] cannot be tortured . . . .”). 3

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Arriving noncitizens like Ms. L. are actually on U.S. soil, because Ports of Entry
are physically located on U.S. territory. Thus, the idea that such individuals have
not actually entered the United States is understood as a “legal fiction.” See Kwai
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Accordingly, the Ninth Circuit and other courts have made clear that arriving
noncitizens stopped at a port of entry have substantive due process rights. Kwai
Fun Wong, 373 F.3d at 973 (holding that non-admitted aliens, who may lack certain

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procedural due process rights with respect to admission, are nonetheless protected

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by the due process clause); Chi Thon Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999)

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(“Even an excludable alien is a ‘person’ for purposes of the Fifth Amendment and

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is thus entitled to substantive due process.”); Rosales-Garcia v. Holland, 322 F.3d

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386, 410 (6th Cir. 2003) (en banc) (“The fact that excludable aliens are entitled to

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less process . . . does not mean that they are not at all protected by the Due Process

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Clauses of the Fifth and Fourteenth Amendments.”), cert. denied, 539 U.S. 941

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(2003); Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir.1987) (the Constitution

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“does not limit the right of excludable aliens detained within United States territory

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to humane treatment”); Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387

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(10th Cir. 1981) (“[A]n excluded alien in physical custody within the United States

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may not be ‘punished’ without being accorded the substantive and procedural due

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process guarantees of the Fifth Amendment.”).4

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Fun Wong, 373 F.3d at 970-71 (explaining the “entry fiction” by which an arriving
noncitizen may be physically present on U.S. soil while still being deemed to not
have “entered” for certain immigration purposes).
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In the circumstances of this case, Ms. L.’s substantive due process right also
carries with it a corresponding right to procedural due process. Arriving
noncitizens lack procedural due process rights in the context of challenging their
exclusion, since they have no absolute substantive constitutional right not to be
excluded. Kwai Fun Wong, 373 F.3d at 971 (“The entry fiction thus appears
determinative of the procedural rights of aliens with respect to their applications for
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2.
The separation of Ms. L. and her child is unconstitutional
because there is no evidence of abuse or neglect.
The Due Process Clause forbids the government from separating a child from
her parents absent a clear showing that the parent is endangering the child, and that
separation is necessary to protect the child. That is not the case here.
The Supreme Court has long recognized family integrity to be one of the
most fundamental liberty interests that the Constitution protects. See, e.g., Santosky

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v. Kramer, 455 U.S. 745, 753 (1982) (there is “a fundamental liberty interest of

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natural parents in the care, custody, and management of their child”); Troxel v.

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Granville, 530 U.S. 57, 65-66 (2000) (plurality op.) (“[T]he interest of parents in

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the care, custody, and control of their children [] is perhaps the oldest of the

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fundamental liberty interests recognized by this Court.”) (collecting cases); Lee v.

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City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001) (“It is well established that a

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parent has a fundamental liberty interest in the companionship and society of his or

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her child.”) (quotation marks omitted); Duchesne v. Sugarman, 566 F.2d 817, 825

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(2d Cir. 1977) (“[T]he most essential and basic aspect of familial privacy [is] the

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right of the family to remain together without the coercive interference of the

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awesome power of the state.”).

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admission.”) (emphasis in original); see also id. (“The entry doctrine has not,
however, been applied, by the Supreme Court or by this court, to deny all
constitutional rights to non-admitted aliens.”). Thus, in this case, if the government
were ever to come forward with any actual grounds to justify taking S.S. away from
Ms. L., Ms. L. would certainly be entitled to a hearing. Otherwise, the government
could simply allege that Ms. L. and other asylum seekers were unfit parents and rip
their children away, without any process.
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In light of this fundamental liberty interest, the courts have been loath to
allow the government to separate a child from her parent (particularly a child as
young as 7-years-old). See, e.g., United States v. Wolf Child, 699 F.3d 1082, 1092

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(9th Cir. 2012) (“Interference with” the “fundamental right to familial association”

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“requires ‘a powerful countervailing interest.’”) (quoting Lassiter v. Dep’t of Social

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Servs., 452 U.S. 18, 27 (1981)); Halet v. Wend Investment Co, 672 F.2d 1305,

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1310-11 (9th Cir. 1982) (requiring compelling interest to deprive parents of their

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“fundamental right” to “live with their children”); Jordan by Jordan v. Jackson, 15

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F.3d 333, 343 (4th Cir. 1994) (“[T]he relationship between parent and child [is]

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inviolable except for the most compelling reasons.”).

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And as the courts have further made clear, in practice, this means that

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separation may not occur absent a clear demonstration that the parent is abusing or

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neglecting the child, or is a threat to the child’s safety in some way. See, e.g.,

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United States v. Loy, 237 F.3d 251, 269-70 (3d Cir. 2001) (“[W]here there is

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insufficient evidence to support a finding that children are potentially in danger

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from their parents, the state’s interest cannot be said to be ‘compelling,’ and thus

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interference in the family relationship is unconstitutional.”); Southerland v. City of

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New York, 680 F.3d 127, 152 (2d Cir. 2012) (family-integrity interest “is

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counterbalanced by the compelling governmental interest in the protection of minor

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children”); Heartland Acad. Comm. Church v. Waddle, 427 F.3d 525, 534 (8th Cir.

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2005) (“[T]he right to family integrity cannot be absolute when the state has a
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compelling interest in protecting children from abuse.”).
In short, in this case, the government has offered no legitimate basis, for
taking a 7 year-old child away from her mother for nearly 4 months. There's been

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no evidence that Ms. L. has abused or neglected her daughter, or that she's an unfit

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parent. The separation thus violates due process.

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B.

The Government’s Separation of Petitioner and Her Child
Violates the APA Because It Is Arbitrary and Capricious.

Courts must “set aside” an agency decision that is “arbitrary” or “capricious.”
5 U.S.C. § 706(2)(A). Under this standard, “a reviewing court must determine

12

whether . . . there has been a clear error of judgment.” Mt. St. Helens Mining &

13

Recovery Ltd. Partnership v. United States, 384 F.3d 721, 728 (9th Cir. 2004). And

14
15

the agency must “supply a reasoned basis for the agency’s action.” Ctr. for

16

Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1193

17

(9th Cir. 2008) (quotation marks omitted).

18
19

The government has provided no reason at all for separating Ms. L. and her

20

child. See Ms. L. Decl., Ex. 10 ¶ 3. Its complete failure to explain such a

21

consequential decision is quintessential arbitrary government action. See Encinco

22
23

Motorcars, LCC v. Navarro, 136 S. Ct. 2117, 2127 (2016) (agency decision fails

24

this standard when “the agency . . . gave almost no reasons at all”); Arrington v.

25

Daniels, 516 F.3d 1106, 1114 (9th Cir. 2008) (where agency “failed to set forth a

26
27
28

rationale for its decision,” the agency’s “lack of explanation for its choice renders
its decision arbitrary and capricious”). The government has facilities designed
10

18cv0428

1

precisely to house mothers and daughters together, not to mention the non-

2

governmental shelters that exist for this purpose. There is no suggestion that

3
4

Petitioner is an unfit caretaker. And the government has provided no other reason

5

why Petitioner’s 7 year-old daughter should be detained alone, thousands of miles

6

from her mother.

7
9

SEPARATION OF PETITIONER FROM HER DAUGHTER HAS
CAUSED AND WILL CONTINUE TO CAUSE IRREPARABLE
INJURY.

10

Defendants have violated and—unless enjoined—will continue to violate

8

11

II.

12

Petitioner’s constitutional rights. “When an alleged deprivation of a constitutional

13

right is involved, most courts hold that no further showing of irreparable injury is

14

necessary.” Warsoldier v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005)

15
16

(indicating that only a “colorable claim” of constitutional violation is needed to

17

establish irreparable harm at the preliminary injunction stage) (quotations and

18

citation omitted); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[T]he

19
20

deprivation of constitutional rights ‘unquestionably constitutes irreparable injury’”)

21

(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).

22
23

But the injury here is not just the harm that generally flows from a

24

constitutional violation. The government in this case has forcibly separated a 7

25

year-old child from her mother. The trauma of that separation causes especially

26

severe irreparable injuries. See Stanley v. Illinois, 405 U.S. 645, 647 (1972)

27
28

(“[P]etitioner suffers from the deprivation of h[er] child[], and the child[] suffer[s]
11

18cv0428

1

from uncertainty and dislocation.”); Leiva-Perez v. Holder, 640 F.3d 962, 969-70

2

(9th Cir. 2011) (“separation from family members” constitutes irreparable harm)

3
4

(quotation marks omitted).

5
6
7

The American Academy of Pediatrics has denounced the recent practice of
separating immigrant children from their parents, explaining that the “[s]eparation

8

of a parent or primary caregiver from his or her children should never occur, unless

9

there are concerns for [the] safety of the child at the hand of [the] parent.” 5 That

10

view is echoed in the declarations in this case of nine medical and mental health

11
12

professionals across multiple fields from around the country, including

13

pediatricians, psychiatrists, psychologists, and social workers, with a combined 174

14

years of experience working with families, including immigrant families. See Oo &

15
16

Schmidt Decl., Ex. 1 ¶ 1; Pena Decl., Ex. 2 ¶ 1; Griffin Decl., Ex. 3 ¶ 1; Carter

17

Decl., Ex. 4, ¶ 1; Linton Decl., Ex. 5 ¶ 1; Shapiro Decl., Ex. 6 ¶ 1; Fortuna Decl.,

18

Ex. 7 ¶ 1; Melikian Decl., Ex. 8 ¶ 1.

19
As these medical experts observe, there is an “overwhelming body of

20
21

scientific literature” that is “replete with evidence of the irreparable harm and

22

trauma to children caused by separation from their parents.” Shapiro Decl., Ex. 6 ¶

23
24

13. This research makes clear that “separating children from their parents has a real

25

and substantial risk of leading to long-term (and irreversible) physiological,

26
27
28

5

Policy Statement, Am. Acad. of Pediatrics, Detention of Immigrant Children, Mar.
2017, http://pediatrics.aappublications.org/content/early/2017/03/09/peds.20170483.
12

18cv0428

1

developmental and psychological problems.” Fortuna Decl., Ex. 7 ¶ 21; see id. ¶¶

2

13, 20 (describing a “significant risk for irreparable harm in regards to brain

3
4

development, psychological health and thus a trajectory of poor mental health,

5

learning and development throughout their life”); Carter Decl., Ex. 4 ¶ 6 (“The

6

psychological effect of traumatic parent-child separation does not end when a child

7
8

is reunited with her parent. Its effect can create permanent harm that influences

9

them for the remainder of their lifespan.”).

10
11

Courts have therefore held that any separation of parents and children visits

12

irreparable harm on both. See McLaughlin v. Pernsley, 876 F.2d 308, 315 (3d Cir.

13

1989) (holding that family separation causes irreparable harm because “the bonds

14

between the [parents] and their foster child will weaken continuously with the

15
16

passage of time apart”); J.B. v. Washington County, 127 F.3d 919, 925 (10th

17

Cir.1997) (“[F]orced separation of parent from child, even for a short time,

18

represents a serious infringement upon both the parents' and child's rights.”)

19
20

(internal quotations removed); Nicolson v. Pappalardo, 685 F.Supp.2d 142, 145-46

21

(D. Me. 2010) (holding that “[e]very additional day” of separation causes further

22

harm). As the Fourth Circuit recently explained, “[p]rolonged and indefinite

23
24

separation of parents [and] children . . . create not only temporary feelings of

25

anxiety but also lasting strains on the most basic human relationships.” Int’l

26

Refugee Assistance Project v. Trump, --- F.3d ---, 2018 WL 894413, at *18 (4th

27
28

Cir. Feb. 15, 2018).
13

18cv0428

1
2
3
4

These harms are magnified by other traumatic events recently experienced by
Ms. L. and her child, including the fact that they had to flee from their home, and
are now detained in a foreign country. Children who have faced recent trauma have

5

a “heightened risk” of long-term emotional damage when they are separated from

6

their parents. Fortuna Decl., Ex. 7 ¶ 8; see Shapiro Decl., Ex. 6 ¶¶ 8-9 (describing

7
8

traumatic context of detention). The reasons are clear to any parent and confirmed

9

by the scientific literature. “Children need their parent’s physical presence to

10
11

successfully recover from traumatic events in their lives.” Melikian Decl., Ex. 8 ¶

12

6. When they lose that parental buffer, they are susceptible to what pediatricians

13

and psychiatrists have termed “toxic stress,” Linton Decl., Ex. 4 ¶ 4.b, which

14

“threatens the developing brain and is associated with subsequent development of

15
16

physical health problems such as diabetes and heart disease, mental health

17

problems, and school failure,” Linton Decl., Ex. 4 ¶ 4.c.

18

Defendants’ actions are thus “doubly harmful,” because they impose the new

19
20

trauma of separation while robbing Petitioner’s little daughter of her parental buffer

21

to cope with that and other traumas. Shapiro Decl., Ex. 6 ¶ 13. Every day they are

22

separated increases this harm and the risk of lasting damage. See Pena Decl., Ex 2

23
24

¶ 9; Oo & Schmidt Decl., Ex. 1 ¶ 7.

25
26
27
28

III.

THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST WEIGH
DECIDELY IN FAVOR OF REUNITING PETITIONER WITH HER
14

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1

DAUGHTER.

2

When ruling on a preliminary injunction motion, “a court must balance the

3
4

competing claims of injury and must consider the effect on each party of the

5

granting or withholding of the requested relief.” Arc of Cal., 757 F.3d at 991

6

(quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987)). The

7
8

relief requested here would cause no injury to Defendants, since a government

9

agency “cannot suffer harm from an injunction that merely ends an unlawful

10
11

practice . . . .” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (citation

12

omitted). And the Ninth Circuit has repeatedly held that “it is always in the public

13

interest to prevent the violation of a party’s constitutional rights.” Melendres, 695

14

F.3d at 1002 (quoting Sammartano v. First Judicial District Court, 303 F.3d 959,

15
16
17
18

974 (9th Cir. 2002)).
Moreover, irrespective of the general harm caused by any constitutional
violation, the particular and ongoing harms to Petitioner and her little girl in this

19
20

case far outweigh any injury Defendants might claim to suffer. See Hawaii v.

21

Trump, 878 F.3d 662, 699 (9th Cir. 2017) (holding that plaintiffs’ “prolonged

22

separation from family members” outweighed any harm to the government)

23
24

(quotation marks omitted). Given this harm, documented by medical experts, the

25

balance of harms and public interest militate strongly in favor of immediately

26

reuniting this little girl and her mother.

27
28

*

*
15

*
18cv0428

1
2
3
4

Ms. L. respectfully requests that she and her daughter be released so they can
be reunited in a non-governmental shelter, or alternatively, that they be
detained together in a government family detention center. But one way or the

5

other, she and her daughter should be reunited, to end this nearly four-month ordeal

6

that no parent and child should ever have to endure.

7

CONCLUSION

8
9
10

The Court should grant the preliminary injunction and reunite Ms. L. and her
daughter.

11
12
13
14
15
16
17
18
19
20
21
22
23

Dated: March 2, 2018
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

Respectfully Submitted,
/s/Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

24
25

*Admitted Pro Hac Vice

26
27
28
16

18cv0428

1

CERTIFICATE OF SERVICE

2

I hereby certify that on March 2, 2018, I electronically filed the foregoing

3

with the Clerk for the United States District Court for the Southern District of

4

California by using the appellate CM/ECF system. A true and correct copy of this
5
6
7
8

brief has been served via the Court’s CM/ECF system on all counsel of record.
/s/ Lee Gelernt
Lee Gelernt, Esq.
Dated: March 2, 2018

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18cv0428

Ms. L. v. U.S. Immigration and Customs Enforcement, et al.
EXHIBITS TO COMPLAINT
TABLE OF CONTENTS
EXHIBIT
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

DOCUMENT
Declaration of Heyman Oo and Caren Schmidt
Declaration of Cristina Muniz de la Pena
Declaration of Marsha R. Griffin
Declaration of Lee Carter
Declaration of Julie M. Linton
Declaration of Alan Shapiro
Declaration of Lisa R. Fortuna
Declaration of Karen Melikian
Unrestricted Declaration of Elizabeth Lopez
Declaration of Ms. L.
Restricted Declaration of Elizabeth Lopez (filed
separately)

PAGES
19-26

27-34
35-41
42-48
49-54
55-64
65-77
78-82
83-86
87-90
91-96

Page 18
18cv0428

Exhibit 1

Exhbit 1, Page 19
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted pro hac vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 1, Page 20
18cv0428

1
2
3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
JOINT DECLARATION OF HEYMAN OO AND CAREN SCHMIDT
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 1, Page 21
18cv0428

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Bibiche Makangu Lubante,
Petitioner,
v.
CASE NO. _____________________

U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border
Protection (“CBP”); U.S. Citizenship and
Immigration Services (“USCIS”); U.S.
Immigration and Customs Enforcement
(“ICE”); Kirstjen Nielsen, Secretary of DHS;
Jefferson Beauregard Sessions III, Attorney
General of the United States; Kevin K.
McAleenan, Acting Commissioner of CBP;
Thomas Homan, Acting Director of ICE; L.
Francis Cissna, Director of USCIS; Pete
Flores, San Diego Field Director, CBP; Greg
Archambeault, San Diego Field Office
Director, ICE; Fred Figueroa, Warden, Otay
Mesa Detention Center,
Respondents.

JOINT DECLARATION OF HEYMAN OO AND CAREN SCHMIDT
I, Heyman Oo, MD, MPH and I, Caren Schmidt, Psy D, make the following declaration based on
our personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746
that the following is true and correct:
1. We have not directly treated the Petitioner but were asked to give this declaration based
on our collective knowledge and over 25 years of combined experience working with
vulnerable children and families, including immigrants and trauma survivors.

1

Exhibit 1, Page 22
18cv0428

Exhibit 1, Page 23
18cv0428

Exhibit 1, Page 24
18cv0428

Exhibit 1, Page 25
18cv0428

Exhibit 1, Page 26
18cv0428

Exhibit 2

Exhibit 2, Page 27
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted pro hac vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 2, Page 28
18cv0428

1
2
3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF CRISTINA MUNIZ DE LA PENA
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 2, Page 29
18cv0428

Exhibit 2, Page 30
18cv0428

Exhibit 2, Page 31
18cv0428

Exhibit 2, Page 32
18cv0428

Exhibit 2, Page 33
18cv0428

Exhibit 2, Page 34
18cv0428

Exhibit 3

Exhibit 3, Page 35
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted Pro Hac Vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 3, Page 36
18cv0428

1
2
3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF MARSHA R. GRIFFIN
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 3, Page 37
18cv0428

DECLARATION OF MARSHA R. GRIFFIN

1,

2
J

a

I, Marsha R. Griffin, MD, make the following declaration based on my personal

4

knowledge and declare under the penalty of perjury as set forth in 28 U.S.C. $ 1746

5

that the following is true and correct.
6

1. I am a Board Certified Pediatrician through the American Board of Pediatrics
(since 2006) and alicensed physician in the state of Texas. I am a Professor

B

9

of Pediatrics at the University of Texas Rio Grande Valley School

of

10

Medicine (UTRGV SOM). I am the Co-Chair of the American Academy of

11,

12

Pediatrics (AAP) Immigrant Health Special Interest Group and a member

13

the AAP Council on Community Pediatrics.

14

I am a co-author of the AAP

Policy Statement "Detention of Immigrant Children," ur$ a contributing

15
16

of

.':

.author of the,AAP Immigrant Health Toolkit. I am also the Director of the

tt
UTRGV SOM Division of Child and Family Health and the Director of the

18
19

UTRGV SOM Department of Pediatrics Community for Children Program.

20

My clinical and academic work

is focused on the care of immigrant children

21,

along the border of Texas and Mexico.

22
23

24

2. I completed my M.D.

.

degree at the University of Texas Health Science

Center at San Antonio (UTHSCSA) in 2003, followed by pediatric residency

25
26

at Baylor College of Medicine, Texas Children's Hospital from 2003 through

27

2005 and a final year of pediatric residency a|UTHSCSA in 2006. I then

28

spent over ten years serving in a Federally Qualified Health Center,
1

Exhibit 3, Page 38
18cv0428

1,

2

for the
Brownsville Community Health Cenler in Brownsville, Texas, caring
and their
poorest of the poor along the southern border. Most of my patients

a

J

2014,I have
families were Spanish speaking only immigrant families. Since

4
5

for
volunteered my services at the Catholic Charities Humanitarian Center

6

recently released immigrants from the Customs and Border Protection

7

Processing Center in McAllen, Texas'

B

9
10

3. I am making this declaration

based on my clinical experience as a

pediatrician providing clinic al carc to immigrant children and academic

11,

expertise serving children and

families. This statement is my own

and not

1.2

13

14
15

on behalf of any group with whom

I am affiliated'

4. I have not personally met with the child in this lawsuit.

The following are

parent
my concerns, in general, about how separatinga child from his or her

16
17
1B

would adversely affect his or her health, development and well-being,
especially where there has already been trauma'

19

20
21,

22
23

24
25
26

5. unless the

child's safety is at risk from the parent, the separation of a child

and longfrom the parent is harmful to the child. This harm can be serious

lasting in the setting of previous trauma'

6. Prolonged stress in the absence of a supportive relationship,

her primary caregiver, cancause what is known as toxic stress'

7: Medical research

has provided evidence that childhood

27
28

such as his or

damage the developing brain and is associated

toxic stress can

with subsequent development
Exhibit 3, Page 39
18cv0428

of physical health problems such as diabetes and heart disease, mental health

1,

2

problems, behavioral problems and school failure.

a

J

8. In my role as a physician, I attest that the separation of a child from a loving

4

parent places a child at risk for the long-term serious impacts of toxic stress.

5

6

9. I have witnessed

7

the painful effects of parental separation in the immigration

setting. I examined a six-year-old girl exhibiting symptoms of possible

B

PTSD and separation anxiety with hyperarousal, excessive clinginess and

9

10

aggressive behavior after witnessing violence in her home country

of

1,1

Guatemala, andwho was then subsequently separated from her father at the
1,2

Rio Grande Valley Sector Customs and Border Processing Center. I have

1.3

1.4

seen-

10-year old boys hetd in locked chain-link enclosures at the same CBP

15

16
1.7

18

Processing Center sobbing and reaching through the chain-link fencing
.t:

screaming for their mothers, who were being held in separate enclosures

approximately 50 feet away. There may be nothing more frightening for a

1,9

20
21

22

vulnerable child than to be forcibly separated from their parent. Even this
short-term separation will have turtirrg impact on their physical and
emotional well-being.

23

24

10. Separation of children from their parents threatens the parent-child

25

relationship, especially if the child believes that the parent should have been

26

capable of preventing the separation and thus any imagined or real

27
28

subsequent

injury. In a child's mind, a parent is supposed to protect them
Exhibit 3, Page 40
18cv0428

1

2

from evil and dangers. When the parent or primary caregiver is seen

as

impotent in a dangerous situation, this threatens their trust in that caregiver

a

J

and

will

be

difficult to restore.

4
5
6

11. Based on my medical experience and training,

I believe that, if at all

possible, it is never in the best interest of a child to be separated from their

7

parent, especially any child who was forced to flee their home country.
8
9

10

12. Prolonged separation from a parent can only exacerbate the irreparable

short- and long-term damage to a child's health and wellbeing.

1,1,

'12

13.I declare under penalty of perjury under the laws of the United States

13

America that the foregoing is true and correct, based on my personal

1,4

of

knowledge. Executed in Brownsville, Texas, on Febru ary 28,2018.

15

'a

16
17

18
19

20

Marsha R. Griffin,

21

22
23

24
25
26
27
28

Exhibit 3, Page 41
18cv0428

Exhibit 4

Exhibit 4, Page 42
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted Pro Hac Vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 4, Page 43
18cv0428

1
2
3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF LEE CARTER
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 4, Page 44
18cv0428

Exhibit 4, Page 45
18cv0428

Exhibit 4, Page 46
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Exhibit 4, Page 47
18cv0428

Exhibit 4, Page 48
18cv0428

Exhibit 5

Exhibit 5, Page 49
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted pro hac vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 5, Page 50
18cv0428

1
2
3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF JULIE M. LINTON
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 5, Page 51
18cv0428

Exhibit 5, Page 52
18cv0428

Exhibit 5, Page 53
18cv0428

Exhibit 5, Page 54
18cv0428

Exhibit 6

Exhibit 6, Page 55
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted pro hac vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 6, Page 56
18cv0428

1
2
3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF ALAN SHAPIRO
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 6, Page 57
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Exhibit 6, Page 58
18cv0428

Exhibit 6, Page 59
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Exhibit 6, Page 60
18cv0428

Exhibit 6, Page 61
18cv0428

Exhibit 6, Page 62
18cv0428

Exhibit 6, Page 63
18cv0428

Exhibit 6, Page 64
18cv0428

Exhibit 7

Exhibit 7, Page 65
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted pro hac vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 7, Page 66
18cv0428

1
2
3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF LISA R. FORTUNA
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit 7, Page 67
18cv0428

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Bibiche Makangu Lubante,
Petitioner,
v.
U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border
Protection (“CBP”); U.S. Citizenship and
Immigration Services (“USCIS”); U.S.
Immigration and Customs Enforcement
(“ICE”); Kirstjen Nielsen, Secretary of DHS;
Jefferson Beauregard Sessions III, Attorney
General of the United States; Kevin K.
McAleenan, Acting Commissioner of CBP;
Thomas Homan, Acting Director of ICE; L.
Francis Cissna, Director of USCIS; Pete
Flores, San Diego Field Director, CBP; Greg
Archambeault, San Diego Field Office
Director, ICE; Fred Figueroa, Warden, Otay
Mesa Detention Center,

CASE NO. _____________________

Respondents.
DECLARATION OF LISA R. FORTUNA
I, Lisa R. Fortuna, MD, MPH, M.Div., make the following declaration based on my personal
knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the
following is true and correct:
1.! I have not directly treated the Petitioner but was asked to give this declaration based
on my knowledge as a psychiatrist with over 20 years of experience working with
vulnerable children and families, including immigrants and trauma survivors.
2.! I am a graduate of Yale University (BA in Psychology 1991); I earned a Doctor of
Medicine (MD) degree from New Jersey Medical School in 1996; a Masters of Public
Health (MPH) from Hunter College School of Public Health, City University of New
York in 2000, a Masters of Divinity in 2012 and I completed a Pediatric Health

Exhibit 7, Page 68
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Services Research Fellowship at Harvard Medical School, Boston in 2003.
3.! I am board certified in general psychiatry and child and adolescent psychiatry
(Diplomat of the American Board of Psychiatry and Neurology), and addiction
medicine. I am a health services researcher and have been an investigator on both
national and international studies of immigrant and refugee mental health and the
impact of trauma and post-traumatic stress in children. My work has contributed to
the field’s understanding of treatment needs and interventions for immigrant and
refugee children and adults. My clinical training and experience in the practice of
psychiatry and child and adolescent psychiatry offers me skills and specialization in
the psychological and social development of individuals across the life span and the
impact of biology, traumatic stress and environment on mental health.
4.! I am the Director of the Section (Division) of Child and Adolescent Psychiatry for the
Boston Medical Center (BMC), and Assistant Professor in the Department of
Psychiatry at Boston University School of Medicine, where I conduct child
behavioral health and disparities research and practice clinical psychiatry (treating
children and youth ages 3 to 21). Our clinical division includes offering child-parent
psychotherapy, a dyadic approach for young children (0-5 years of age) and parents
who have both experienced trauma. In this latter context I have developed clinical
experience in working with young immigrant and refugee children who have
experienced trauma, including witnessing violence and traumatic separations.
5.! My clinical career has focused on treating a range of childhood psychiatric disorders
and I have particular interest and expertise in Post-Traumatic Stress Disorder (PTSD),
access to care, and quality of treatment for underserved and vulnerable populations

Exhibit 7, Page 69
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including children, immigrant and refugee populations. I am a cofounder of the
Refugee Immigrant Assistance Center Community Counseling (RIAC-CC), a mental
health clinic in Boston. My clinical work at RIAC involves the mental health
assessment and treatment of immigrant and refugee patients. I have served as a
clinical investigator on several National Institutes of Health funded research projects
with most of this work focused on immigrant mental health. I conduct collaborative
research with colleagues both nationally and internationally, including most recently
a clinical intervention research study of Latino immigrants in the United States and
Spain.
6.! I have published several articles and a book in the field of psychiatry, largely on
issues related to immigrant (including unaccompanied minors) and minority mental
health, PTSD and adolescent substance use disorders. I have included my curriculum
vitae with this declaration, attached hereto as Appendix 1. The following are select
publications relevant to this declaration:
a.!

Fortuna LR, Porche MV, Alegria M. Political violence, psychosocial
trauma, and the context of mental health services use among immigrant
Latinos in the United States. Ethnicity & Health 2008 Nov;13(5):435!63.
PMCID: PMC2771411.

b.!

Porche, MV, Fortuna, LR, Lin, J. & Alegria M. (2011) Childhood trauma
events and psychiatric disorders as correlates of school dropout in a national
sample of young adults, Child Development. 82, 982-998. PMCID:
PMC3089672.

c.!

Fortuna LR, Alvarez K, Ramos Ortiz Z, Wang Y, Mozo Alegría X, Cook

Exhibit 7, Page 70
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BL, Alegría M. Mental health, migration stressors and suicidal ideation
among Latino immigrants in Spain and the United States. European
Psychiatry. 2016 Aug; 36:15-22. PMID: 27311103.
d.!

Ramos Z, Fortuna L.R, Porche MV, Wang Y, Shrout PE, Loder S, McPeck
S, Noyola N, Toro M, Carmona R, Alegría M. Posttraumatic Stress
Symptoms and their Relationship to Drug and Alcohol use in an
International Sample of Latino Immigrants. J Immigrant and Minority
Health. 2016 May 5. PMID: 27150593.

7.! To prepare this declaration, I reviewed the scientific literature in addition to relying on

the knowledge accumulated during my education, research and clinical experience
described above.
8.! It is my opinion that immigrant and refugee young children who have faced

psychological trauma are at heightened risk of suffering from irreversible,
psychological harm and especially if a child also experiences a traumatic separation
from their parent. Based on my review of scientific and medical literature, as well as
my practice in the field, my opinions are as follows.
Separation for a Primary Attachment Figure is Psychologically Hazardous for Young
Immigrant and Refugee Children
9.! Children who are detained are at risk of a variety of psychosocial and developmental
problems linked to their detention experiences. A variety of factors contribute to the
distress experienced by children who are held in detention, including previous trauma
experienced in their home country or during migration, disruption of the family unit,
separation from parents and poor and unsafe conditions of detention (Young & Gordon,

Exhibit 7, Page 71
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2016).1
10.!The study of attachment has illuminated the critical role of early caregiving
relationships in fostering healthy development and forming a basis for future
relationships and mental health well-being (Ainsworth, Blehar, Waters, & Wall, 2015;
Bowlby, 1988; Freud & Burlingham, 1943; Lyons-Ruth, 1996; Lyons-Ruth, Zoll,
Connell, & Grunebaum, 1986). The loss of a parent is a severe hardship for any child;
children who have suffered traumatic stress and other losses as many refugee/ asylum
seeking children have, are particularly vulnerable to negative psychological
consequences related to separation from parent.
11.!Risk factors known to be especially hazardous for children include separations from
their primary attachment figure and loss or disappearance of a parent, exposure to
traumatic events such as abuse, and damaging social environments (Carlson, 2012).
12.!In my clinical practice, I have evaluated several children asylum seekers whose anxiety,
depression and post-traumatic stress are worsened during periods of uncertainty, times
of separation from primary caregiver and when he or she is unable to have the physical
and emotional protection from his or her parent.
Children Who Have Experienced Traumatic Loss are at Risk of Suffering Irreparable
Harm to Their Brain Development
13.!Severe stress such as traumatic separations in infancy and childhood may have serious,
long-lasting effects on a child’s brain development, affecting future manifestations of
negative emotions, maladaptive behaviors, and conflictual attachments. As a result,
children thus affected operate in a survival mode, rather than learning to flexibly adapt

1

Complete citations for medical literature cited herein is referenced in Appendix 2.
Exhibit 7, Page 72
18cv0428

to environmental demands
14.!Factors such as the level of supervision, familial and social support make a difference
in the level of distress children experience. Hodes et al., (2008) discovered that PTSD
and depressive disorders were significantly higher in children with low-support living
arrangements as compared to those with good social supports and attachments.
15.!In addition to the issue of support, a host of risks and influences create and exacerbate
mental distress among children including if children have lost their home, belongings,
family and friends (Carlson et al., 2012). Other influences on stress include language
barriers, uncertainty about asylum status, fears of deportation, the process of
immigration itself, and the lack of personal and structural support all contribute to the
distress experienced by a child and the long-term risk to their cognitive and emotional
development (Bronstein & Montgomery, 2011).
16.!The mental health risks thus far described may surface or be aggravated when children
are placed in confined, institutional settings and are also separated from family
members (Lee, 2012). Social isolation and being deprived of ones caretakers are risk
factors for poor psychological outcomes (Ehnthold & Yule, 2006; Ellis, et al., 2008;
Grove & Zwi, 2006).
Children Who Have Experienced Traumatic Loss Are at Risk of Suffering Irreparable
Harm to their Mental Health
17.!Traumatic exposures, especially long term and recurrent, combined with the loss of
attachment figures and social instability can impede personality and identity
development and subsequently impair functioning (Howard et al, 2011; Smid et al.,
2011).

Exhibit 7, Page 73
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18.!Bronstein and Montgomery (2011) examined the developmental impact on refugee
immigrant children highlighting the uncertainty that is created for these children due to
separations from attachment figures and the challenges this presents to their learning,
functioning and well-being. Without parents, family and others who care about them
to fill emotional needs, a child’s adaptive processes are impaired by their uncertain
future prospects (Chavez & Menjivar, 2010). In the long term, this can result in school
failure, drop out, persistent poverty and hopelessness and even suicidality later in life
(Fortuna et al., 2016; Porche et al., 2011).
19.!Children of families seeking asylum have by definition experienced traumatic stress,
often severe in nature. The more terror inducing the trauma is and the longer its duration
is, particularly when combined with the absence of a parent, the more devastating its
effects on children (Boothby, 1994). Trauma exposure in children and adolescents can
impede personality development, causing disturbances in sense of self, impairment of
basic trust, attachment disorders, and sharp deterioration in functioning (van der Kolk,
1996; Carlson, 2012). This adversely impacts interpersonal attachments and
developments in the future (Moro, 2003).
20.!It is my opinion that when refugee and immigrant children, especially young children
are separated from their parent and primary attachment figure, they are placed at
significant risk for irreparable harm in regards to brain development, psychological
health and thus a trajectory of poor mental health, learning and development throughout
their life. I treat children in my clinical practice who range the ages of 3 to 17 years old
who are still recovering from past separations and traumatic losses. Children who are
seeking asylum who are accompanied by their parents, should be maintained together

Exhibit 7, Page 74
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with their parent/ primary attachment figure. Imposing a traumatic separation upon a
child and their parent further increases the risk that the child will develop long-term
psychological consequences and that the dyadic relationship will be harmed.
Clinical Recommendation
21.!Based on my clinical experience and the foregoing analysis, it is my opinion that
separating children from their parents has a real and substantial risk of leading to
long-term (and irreversible) physiological, developmental and psychological
problems. If children and parents are detained it is absolutely necessary, that they are
not separated from one another.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct, based on my personal knowledge. Executed in Boston,
Massachusetts on February 17, 2018

Lisa R. Fortuna, MD, MPH, M.Div.

Exhibit 7, Page 75
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Appendix 2
Ainsworth, M. D. S., Blehar, M. C., Waters, E., Wall, S. N. (2015). Patterns of attachment: A
psychological study of the strange situation. New York: Psychology Press.
Boothby, N. (1994). Trauma and violence among refugee children. In A. J. Marsella, T.
Bornmann, S. Ekblad,& J. Orley (Eds.), Amidst peril and pain: The mental health and well-being
of the world’s refugees (pp.239–259). Washington, DC: American Psychological
Association.
Bowlby, J. (1988). A secure base. New York: Routledge.
Bronstein, I., & Montgomery, P. (2011). Psychological distress in refugee children: a systematic
review. Clin Child Fam Psychol Rev, 14(1), 44-56. doi:10.1007/s10567-010-0081-0
Carlson, B. E., Cacciatore, J., & Klimek, B. (2012). A risk and resilience perspective on
unaccompanied refugee minors. Social Work, 57(3), 259-269. doi:10.1093/sw/sws003
Chavez, L. and Menjívar, L. (2010). Children Without Borders: A Mapping of the Literature on
Unaccompanied Migrant Children to the United States.”Migraciones Internacionales, 5 (3): 71111.
Ehntholt, K. A., & Yule, W. (2006). Practitioner review: assessment and treatment of refugee
children and adolescents who have experienced war-related trauma. J Child Psychol Psychiatry,
47(12), 1197-1210. doi:10.1111/j.1469-7610.2006.01638.x
Fortuna, L. R., Alvarez, K., Ramos Ortiz, Z., Wang, Y., Mozo Alegria, X., Cook, B. L., &
Alegria, M. (2016). Mental health, migration stressors and suicidal ideation among Latino
immigrants in Spain and the United States. Eur Psychiatry, 36, 15-22.
doi:10.1016/j.eurpsy.2016.03.001
Freud, A. & Burlingham, D. T. (1943). War and children. New York: Medical War Books.
Hodes, M. (2008). Psychopathology in refugee and asylum seeking children. In M. Rutter, D.
Bishop, D. Pine, S. Scott, J. Stevenson, E. Taylor, A. Thapar, M. Rutter, D. Bishop, D. Pine, S.
Scott, J. Stevenson, E. Taylor, & A. Thapar (Eds.), Rutter's child and adolescent psychiatry. (pp.
474-486): Wiley-Blackwell.
Howard, K., Martin, A., Berlin, L. J., & Brooks-Gunn, J. (2011). Early Mother-Child Separation,
Parenting, and Child Well-Being in Early Head Start Families. Attachment & Human
Development, 13(1), 5–26. http://doi.org/10.1080/14616734.2010.488119
Lyons-Ruth, K. (1996). Attachment relationships among children with aggressive behavior
problems: the role of disorganized early attachment patterns. J Consult Clin Psychol, 64(1), 6473.
Lyons-Ruth, K., Zoll, D., Connell, D., & Grunebaum, H. U. (1986). The depressed mother and
her one-year-old infant: environment, interaction, attachment, and infant development. New Dir
Child De v(34), 61-82.
Porche, M. V., Fortuna, L. R., Lin, J., & Alegria, M. (2011). Childhood trauma and psychiatric
disorders as correlates of school dropout in a national sample of young adults. Child Dev, 82(3),
Exhibit 7, Page 76
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982-998. doi:10.1111/j.1467-8624.2010.01534.x
Van der Kolk, B.A., Pelcovitz, D., Roth, S., Mandel, F., McFarlane, A., & Herman, J.L. (1996).
Dissociation, somatization, and affect dysregulation: The complexity of adaptation to trauma.
American Journal of Psychiatry, 153(7), 83–93.

Exhibit 7, Page 77
18cv0428

Exhibit 8

Exhibit 8, Page 78
18cv0428

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5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted pro hac vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
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19
20
21
22
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24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 8, Page 79
18cv0428

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Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF KAREN MELIKIAN
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

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Exhibit 8, Page 80
18cv0428

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Bibiche Makangu Lubante,
Petitioner,
v.
U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border
Protection (“CBP”); U.S. Citizenship and
Immigration Services (“USCIS”); U.S.
Immigration and Customs Enforcement
(“ICE”); Kirstjen Nielsen, Secretary of DHS;
Jefferson Beauregard Sessions III, Attorney
General of the United States; Kevin K.
McAleenan, Acting Commissioner of CBP;
Thomas Homan, Acting Director of ICE; L.
Francis Cissna, Director of USCIS; Pete
Flores, San Diego Field Director, CBP; Greg
Archambeault, San Diego Field Office
Director, ICE; Fred Figueroa, Warden, Otay
Mesa Detention Center,

CASE NO. _____________________

Respondents.
DECLARATION OF KAREN MELIKIAN
I, Karen Melikian, PhD, make the following declaration based on my personal knowledge and
declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and
correct:
1. I have not directly treated the Petitioner but was asked to give this declaration based on my
knowledge as a licensed social worker with 36 years of experience working with
vulnerable children and families, including immigrants and trauma survivors.
2. I am a Social Worker in the state of Massachusetts and have been licensed since 1982. I
earned my MSW at the University of Pennsylvania School of Social Work in 1980 and
my PhD from Simmons College School of Social Work in 1996. I have worked as a
Teaching Associate in Psychiatry at McLean Hospital since 2005 and as a faculty
member for the Child and Adult Graduate Programs at the Boston Psychoanalytic Society
and Institute since 2015.
3. My professional experience includes crisis and long term clinical work with children and
families at different developmental stages and in various medical and community based
settings. In these roles, I have been involved with countless immigrant families as well as
a variety of situations where children and parents have been separated. Additionally, I
have assessed numerous children and adults who are seeking asylum through my
volunteer work with Physicians for Human Rights]
4. It is my understanding that, in this case, the Petitioner and 7-year-old daughter presented at
the United States border requesting asylum after fleeing the Democratic Republic of the
Congo. Mother and daughter were subsequently separated, with mother now in a
detention center in San Diego and the daughter, unaccompanied by any family member,
now residing in an ORR facility in Chicago.
5. Based on my work experience, I can attest that the separation of any child from their
parent presents complicated obstacles for healthy functioning and development.
Separating asylum-seeking parents and their children who are already fleeing traumatic
circumstances will have severe negative medical consequences. It is my professional
opinion that this current situation perpetuates extreme emotional destabilization and
purposeful neglect of this child’s basic needs.

Exhibit 8, Page 81
18cv0428

6. Parents provide stability, containment, and comfort to their children to enable healthy
functioning and growth. Communities in chaos create an already fragile environment for
the developing child. Parental relationships help to ameliorate the impact of strife on
children by modeling unity in the face of stressors. Children need their parent’s physical
presence to successfully recover from traumatic events in their lives.
7. In the absence of secure attachments to known and trustworthy adults, children become
confused and overwhelmed with the effects of sadness, fear, and guilt, making it difficult
for them to think clearly and maintain realistic hope for the future. Even the most resilient
child will experience debilitating effects of trauma, including anxiety, despair,
disturbance of sleep and hyper arousal, when separated from their parent.
8. Parental protection, nurturance, and guidance speeds recovery and supports better coping
skills for traumatized children. State of the art treatment for parents and children who
have experienced trauma places the family itself at the center of the service delivery.
Adaptation to demanding situations is facilitated by remaining connected to the
individual that the child loves and depends on for a sense of continuity.
9. Awareness of the destructive consequences of disrupted family ties and faith in the
ameliorative value of family unity is a proven prerequisite for both the child’s and the
parent’s mental and physical survival.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct, based on my personal knowledge. Executed in Boston,
Massachusetts on [DATE]

​Karen Melikian, PhD
NPI 1023096633
EIN 27-1074333
1577 Beacon Street
Brookline, MA 02446
[phone]
[e-mail]
1

Exhibit 8, Page 82
18cv0428

Exhibit 9

Exhibit 9, Page 83
18cv0428

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

1
2
3

Ms. L.,

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5
6
7
8
9
10
11
12
13
14
15
16
17

v.

Petitioner-Plaintiff,

Case No. 18-cv-00428-DMS-MDD
U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field
Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.

18
19
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UNRESTRICTED DECLARATION OF ELIZABETH LOPEZ
I, Elizabeth Lopez, make the following declaration based on my personal

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knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746
that the following is true and correct:
1. I am the immigration attorney for Plaintiff-Petitioner, Ms. L, and represent

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her in her immigration proceedings. I was retained on February 12, 2018.
Prior to that date, Ms. L. had no legal representation.

28
Exhibit 9, Page 84
18cv0428

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4

2. I am currently employed at the Southern California Immigration Project in
San Diego, CA.
3. During one of my visits with Ms. L. in the Otay Mesa Detention Center in

5

San Diego, CA, she provided me with a copy of her daughter, S.S.’s, school

6

identification card. This ID is from S.S.’s school in the Democratic Republic

7
8

of the Congo and has a picture of S.S. The picture is attached as an

9

addendum to this declaration (restricted).

10
11

4. On or about November 1, 2017, Ms. L. and her daughter, S.S., presented

12

themselves at a port of entry and expressed a fear of returning to the Congo.

13

Although Ms. L. and S.S. speak only Lingala, they were able to communicate

14

their fear of returning to the Congo in the little bit of Spanish they knew.

15
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Sometime after arriving in the United States, Ms. L. was given a credible fear

17

interview by an asylum officer. To satisfy the credible fear standard, an

18

asylum applicant must demonstrate a significant possibility that she will

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ultimately obtain asylum in the United States. Ms. L. passed her credible fear

21

interview, and was then placed into full immigration proceedings. Ms. L. fled

22

her home in the Democratic Republic of the Congo in fear of her life. She is

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catholic and sought shelter with S.S. in a church for several days before

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eventually escaping the Congo.

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I declare under penalty of perjury under the laws of the United States of
Exhibit 9, Page 85
18cv0428

Exhibit 9, Page 86
18cv0428

Exhibit 10

Exhibit 10, Page 87
18cv0428

1
2
3
4
5
6
7
8
9
10
11

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

*Admitted Pro Hac Vice

Attorneys for Petitioner-Plaintiff
Additional counsel on next page

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

13
14

Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]

Bibiche Makangu Lubante,

15

Petitioner-Plaintiff,

16

v.
17
18
19
20
21
22
23
24
25
26
27
28

U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE, Otay Detention Facility;
Kirstjen Nielsen, Secretary of DHS; Jefferson
Beauregard Sessions III, Attorney General of the
United States; Kevin K. McAleenan, Acting
Commissioner of CBP; L. Francis Cissna,
Director of USCIS; Pete Flores, San Diego Field

Case No. 18-cv-00428-DMSMDD

Exhibit 10, Page 88
18cv0428

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3
4
5
6
7
8
9
10
11
12
13

Director, CBP; Fred Figueroa, Warden, Otay
Mesa Detention Center; Alex Azar, Secretary of
the Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
Respondents-Defendants.
DECLARATION OF MS. L.
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]

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Exhibit 10, Page 89
18cv0428

Exhibit 10, Page 90
18cv0428