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

Filing 42

MOTION to Certify Class by Ms. C., Ms. L.. (Attachments: # 1 Memo of Points and Authorities Memorandum in Support of Motion for Class Certification and Exhibits)(Gelernt, Lee) (aef).

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1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 Ms. L. and Ms. C., Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, 13 v. 14 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; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents-Defendants. Date Filed: March 9, 2018 MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION CLASS ACTION Hearing Date: April 27, 2018 Time: TBD Courtroom: 13A Judge: Hon. Dana Sabraw 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org TABLE OF CONTENTS 1 2 3 4 5 6 7 8 INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 3 Named Plaintiff: Ms. L.................................................................................... 3 Named Plaintiff: Ms. C. .................................................................................. 4 The Class ......................................................................................................... 5 ARGUMENT ............................................................................................................. 6 I. The Proposed Class Satisfies Rule 23(a)’s Requirements. ................... 7 A. The Proposed Easily Satisfies the Numerosity Requirement .......... 7 9 B. The Class Presents Common Questions of Law and Fact. .............. 9 10 C. Typicality: Plaintiffs’ Claims Are Typical of Class Members’ Claims. ........................................................................................... 13 11 12 13 D. Adequacy: Plaintiffs Will Adequately Protect the Interests of the Proposed Class, and Plaintiffs’ Counsel Are More Than Qualified to Litigate this Action. ................................................................... 14 14 E. The Class Is Sufficiently Ascertainable. ........................................ 16 15 16 II. This Action Satisfies the Requirements of Rule 23(b)(2). ................. 18 CONCLUSION........................................................................................................ 20 17 18 19 20 21 22 23 24 25 26 27 28 i Case No. 18-cv-00428-DMS-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Alfaro Garcia v. Johnson, No. 14-cv-1775, 2014 WL 6657591 (N.D. Cal. 2014)………………………….15 Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003)………………………………………………8 Ark. Educ. Ass’n v. Board Of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763 (8th Cir. 1971)……………………………………………………...8 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001)…………………………………………………….10 Arnott v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 579 (C.D. Cal. 2012)…………………………………………..6, 7, 12 Baharona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999)……………………………………………………..2 Carrillo v. Schneider Logistics, Inc., No. 11-cv-8557CAS-DTBX, 2012 WL 556309 (C.D. Cal. Jan. 31, 2012)………2 Cervantez v. Celestica Corp., 253 F.R.D. 562 (C.D. Cal. 2008)…………………………………………………8 Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016)…………………………………………………….16 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011)…………………………………………………….12 Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th Cir. 2012)…………………………………………………...12 Franco-Gonzales v. Napolitano, No. 10-cv-02211-DMG-DTBX, 2011 WL 11705815 (C.D. Cal. Nov. 21, 2011)…………………………………………………….7, 15 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)……………………………………………………………..11 Greater Los Angeles Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC, No. 13-cv-7172 PSG (ASX), 2014 WL 12561074 (C.D. Cal. May 6, 2014)..16,17 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)……………………………………………..9, 10,13 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992)…………………………………………………13,14 Harris v. Palm Springs Alpine Estates, Inc., 329 F. 2d 909 (9th Cir. 1964)……………………………………………………..7 Hawker v. Consovoy, 198 F.R.D. 619 (D.N.J. 2001)………………………………………………….....9 Hum v. Dericks, 162 F.R.D. 628 (D. Haw. 1995)…………………………………………………..8 In re Yahoo Mail Litig., 308 F.R.D. 577 (N.D. Cal. 2015)………………………………………………..16 Johnson v. California, 543 U.S. 499 (2005)………………………………………………………………8 Jordan v. Los Angeles Cty., 669 F.2d 1311 (9th Cir. 1982)………………………………………………….....8 Khoury v. Asher, 3 F. Supp. 3d 877 (W.D. Wash. 2014)…………………………………………..15 LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985)…………………………………………………...14 Lamumba Corp. v. City of Oakland, No. 05-cv-2712 MHP, 2007 WL 3245282 (N.D. Cal. Nov. 2, 2007)…………...17 ii Case No. 18-cv-00428-DMS-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Lynch v. Rank, 604 F. Supp. 30 (N.D. Cal. 1984)……………………………………………….14 Lyon v. U.S. Immigration & Customs Enf’t, 308 F.R.D. 203 (N.D. Cal. 2015)………………………………………………..18 Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) ………………………………………………14 Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012)…………………………………………………..9,10 Mendez Rojas, et al. v. Johnson, No. 16-cv-1024-RSM (W.D. Wash. Jan. 10, 2017)………………………………7 Moreno v. Napolitano, No. 11-cv-5452, 2014 WL 4911938 (N.D. Ill. Sept. 30, 2014)…………………17 Natl. Assn. of Radiation Survivors v. Walters, 111 F.R.D. 595 (N.D. Cal. 1986)………………………………………………....9 O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311 (C.D. Cal. 1998)………………………………………………..17 Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982)………………………………………………12 Parsons v.Ryan, 754 F.3d 657 (9th Cir. 2014)…………………………………………….....9,13,19 Perez-Funez v. Dist. Dir., I.N.S., 611 F. Supp. 990 (C.D. Cal. 1984)………………………………………………..7 Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008)………………………………………………..11 Preap v. Johnson, 303 F.R.D. 566 (N.D. Cal. 2014)……………………………………………..9, 15 RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015)………………………………………………15 Rivera v. Johnson, 307 F.R.D. 539 (W.D. Wa 2015)………………………………………………..15 Santillan v. Ashcroft, No. 04-cv-2686MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004)………...6, 10 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010)………………………………………………………………6 Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015)……………………………………………………..16 Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004)…………………………………………………...16 Smith v. Heckler, 595 F. Supp. 1173 (E.D. Cal. 1984)………………………………………………8 Sueoka v. United States, 101 Fed. App’x 649 (9th Cir. 2004)………………………………………………7 Sweet v. Pfizer, 232 F.R.D. 360 (C.D. Cal. 2005)………………………………………………..11 Wagafe v. Trump, No. 17-cv-0094-RAJ, 2017 WL 2671254 (W.D. Wash. June 21, 2017)…………6 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)……………………………………………………..11, 12, 18 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998)………………………………………………passim Yaffe v. Powers, 454 F.2d 1362 (1st Cir.1972)……………………………………………………16 Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012)…………………………………………………….18 28 iii Case No. 18-cv-00428-DMS-MDD 1 Rules 2 Fed. R. Civ. P. 23(a)……………………………………………………....1, 2, 6, 18 Fed. R. Civ. P. 23(a)(1)……………………………………………………………..7 Fed. R. Civ. P. 23(a)(2) …………………………………………………………….9 Fed. R. Civ. P. 23(a)(4)……………………………………………………………14 Fed. R. Civ. P. 23(b)………………………………………………………1, 2, 6, 18 Fed. R. Civ. P. 23(b)(2)……………………………………………………16, 18, 19 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv Case No. 18-cv-00428-DMS-MDD 1 2 INTRODUCTION A class action lawsuit is appropriate to challenge Defendants’ nationwide 3 unlawful practice of separating parents and children absent any showing that the 4 5 parent presents a danger to the child. Plaintiffs seek to certify the following 6 nationwide class under Federal Rules of Civil Procedure 23(a) and 23(b)(2): 7 8 9 10 All adult parents nationwide who (1) are or will be detained in immigration custody by the Department of Homeland Security, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child. 11 12 13 14 The proposed class readily satisfies the requirements of numerosity, commonality, typicality, and adequacy in Rule 23(a) and is readily ascertainable. The proposed class includes hundreds of individuals whose minor children 15 16 have already been taken from them, which is sufficient to satisfy numerosity. The 17 class raises numerous common legal questions that will generate common answers, 18 including whether Defendants’ challenged separation practice violates the Due 19 20 Process Clause and the Administrative Procedure Act (APA). The class also raises 21 common factual issues because Plaintiffs and class members are subject to the same 22 practice of keeping parents in immigration facilities separated from their children 23 24 25 26 detained elsewhere. Plaintiffs’ Due Process Clause and APA claims are typical of those whom they seek to represent—that is, other parents who have or will have their children taken from them. Plaintiffs are also adequately represented by a team 27 28 of attorneys from the ACLU Immigrants’ Rights Project and the ACLU of San 1 Case No. 18-cv-00428-DMS-MDD 1 Diego and Imperial Counties with significant experience in immigrants’ rights 2 issues and class action cases. 3 Plaintiffs’ proposed class likewise satisfies Rule 23(b)(2) because Defendants 4 5 have “acted or refused to act on grounds that apply generally to the class, so that 6 final injunctive relief or corresponding declaratory relief is appropriate respecting 7 8 the class as a whole.” Because the government has a practice of separating parents 9 from their children without a hearing or any showing of abuse or neglect, they are 10 11 operating in a manner that is common to all Plaintiffs. The class as a whole is 12 therefore entitled to an injunction ordering Defendants to reunite class members 13 with their minor children. 14 Accordingly, this Court should grant class certification under Rule 23(b)(2) 15 16 for purposes of entering Plaintiffs’ requested classwide preliminary and permanent 17 injunctions.1 See Carrillo v. Schneider Logistics, Inc., No. 11-cv-8557, 2012 WL 18 556309, at *9 (C.D. Cal. Jan. 31, 2012) (“courts routinely grant provisional class 19 20 certification for purposes of entering [preliminary] injunctive relief” under Rule 21 23(b)(2), where the plaintiff establishes that the four prerequisites in Rule 23(a) are 22 also met) (citing Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)). 23 24 25 26 27 28 1 Plaintiffs also request that they be appointed Class Representatives, and that undersigned counsel be appointed Class Counsel. 2 Case No. 18-cv-00428-DMS-MDD 1 2 BACKGROUND Named Plaintiff: Ms. L. 3 After fleeing the Democratic Republic of Congo with her 7 year-old 4 5 daughter, Ms. L. presented herself to border guards at the San Ysidro Port of Entry 6 on November 1, 2017. After she expressed fear of returning to the Congo, Ms. L. 7 8 was given a credible fear interview, and the asylum officer determined that she had 9 a credible fear of persecution. Ms. L. was therefore placed into formal removal 10 11 12 proceedings, where she will pursue her asylum claim. See PI Mem., ECF No. 21-1, at 2-3.2 13 14 When they initially arrived in the United States, Ms. L. and her daughter, S.S., were detained together. Four days later, however, Ms. L.’s child was taken 15 16 from her. With no explanation, the government removed S.S. from the detention 17 center where Ms. L. was held and moved her 2,000 miles away to a facility in 18 Chicago, with the little girl frantically screaming that she did not want to leave her 19 20 mommy. The government has never alleged that S.S. would not be safe with her 21 mother, or that Ms. L. is not a fit parent. And yet Defendants has not allowed Ms. 22 L. and her child to see each other for four months now. Each time they have been 23 24 able to speak on the phone, S.S. has been crying and afraid. Ms. L. is likewise 25 frightened, depressed, and unable to eat or sleep. See PI Mem., ECF No. 21-2, at 3- 26 4. 27 28 2 Because Ms. L inadvertently waived her rights in her immigration proceeding, she is currently in the process of requesting that the immigration judge reconsider and reopen her case. 3 Case No. 18-cv-00428-DMS-MDD 1 2 3 4 After Ms. L. filed this lawsuit and moved for a preliminary injunction, Defendants released her from custody on March 6, 2018. They informed her that she would be released mere hours in advance, with no arrangements for where she 5 would stay. They have not released her child, who remains in custody alone in 6 Chicago. 7 8 Named Plaintiff: Ms. C. 9 Ms. C. and her 14 year-old son, J., fled Brazil to seek asylum and came to the 10 United States in late August 2017. After she entered the United States a few feet, a 11 12 border guard approached her, and she explained that she wanted to apply for 13 asylum. Although she was seeking asylum, Ms. C. was nonetheless prosecuted for 14 entering the country illegally, a misdemeanor for which she spent approximately 25 15 16 days in jail. When Ms. C. was sent to jail for this misdemeanor conviction, her son 17 J. was taken away from her and sent to a facility in Chicago. When she was 18 released from jail, Ms. C. passed a credible fear interview, and was put in removal 19 20 proceedings, where she is applying for asylum. Ex. 12. 3 21 After serving her misdemeanor sentence, Ms. C. was transferred on 22 September 22, 2017, to the El Paso Processing Center in Texas, an immigration 23 24 facility. In early January she was transferred again to the West Texas Detention 25 Facility, which is also known as Sierra Blanca. Ms. C. was has not seen her son J. 26 since he was taken from her last year. Even after Ms. C. was released from jail and 27 28 3 The exhibits are numbered continuously from the beginning of the case. 4 Case No. 18-cv-00428-DMS-MDD 1 sent to an immigration facility, Defendants did not reunite her with her son. The 2 government has never alleged that J. would not be safe with her mother, and it has 3 4 never made any demonstration that Ms. C. is not a fit parent.4 5 Ms. C. is desperate to be reunited with her son, who has been having a 6 difficult time emotionally since being separated from him mother. Ms. C. worries 7 8 about him constantly and does not know when she will be able to see him. They 9 have only spoken on the phone a handful of times since they were forcibly 10 11 12 separated by Defendants. The Class. 13 14 Plaintiffs’ experiences are representative of Defendants’ practice of forcibly separating parents from their children without a hearing and without any 15 16 demonstration that the parent is endangering the child. Lawyers and advocates who 17 represent detained migrant families and children report hundreds of such cases over 18 the past year. See Declaration of Michelle Brané, Ex. 14, ¶ 5 (noting more than 400 19 20 cases of parent-child separation); Declaration of Shalyn Fluharty, Ex. 15, ¶ 2. 21 (estimating hundreds of children who have been separated from a parent at the 22 border); Declaration of Mayra Jimenez, Director of the Children’s Program at 23 24 RAICES, Ex. 13, ¶ 4 (“We have seen over 100 situations of children separated from 25 their parents at the time of apprehension and continue to see more.”). 26 27 28 4 This case concerns only the time in which Ms. C. and other class members are separated from their children while the parent is in immigration custody, and not the period of separation while the parent is in jail for a criminal conviction. 5 Case No. 18-cv-00428-DMS-MDD 1 2 3 4 ARGUMENT A plaintiff whose suit meets the requirements of Federal Rule of Civil Procedure 23 has a “categorical” right “to pursue his claim as a class action.” 5 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 6 (2010). To meet these requirements, the “suit must satisfy the criteria set forth in 7 8 [Rule 23(a)] (i.e., numerosity, commonality, typicality, and adequacy of 9 representation), and it also must fit into one of the three categories described in 10 11 subdivision (b).” Id. 12 Plaintiffs’ proposed class satisfies all four of the Rule 23(a) prerequisites, as 13 well as the judicially implied requirement of ascertainability. The proposed class 14 likewise meets the requirements for certification under Rule 23(b)(2). 15 16 This Court should certify the proposed class in keeping with the numerous 17 court decisions certifying classes in similar actions challenging the federal 18 government’s administration of immigration programs. See, e.g., Walters v. Reno, 19 20 145 F.3d 1032 (9th Cir. 1998) (affirming certification of nationwide class of 21 individuals challenging adequacy of notice in document fraud cases); Arnott v. U.S. 22 Citizenship & Immigration Servs., 290 F.R.D. 579 (C.D. Cal. 2012) (certifying 23 24 nationwide class of immigrant investors challenging USCIS’ retroactive application 25 of new rules governing approval petitions to remove permanent residency 26 conditions); Santillan v. Ashcroft, No. 04-cv-2686, 2004 WL 2297990 (N.D. Cal. 27 28 Oct. 12, 2004) (certifying nationwide class of lawful permanent residents 6 Case No. 18-cv-00428-DMS-MDD 1 challenging delays in receiving documentation of their status); Wagafe v. Trump, 2 No. 17-cv-0094, 2017 WL 2671254, at *1 (W.D. Wash. June 21, 2017) (certifying 3 4 nationwide class of naturalization applicants challenging national security screening 5 procedures); Mendez Rojas, et al. v. Johnson, No. 16-cv-1024, 2017 WL 1397749 6 (W.D. Wash. Jan. 10, 2017) (certifying two nationwide classes of asylum seekers 7 8 challenging defective asylum application procedures). 9 I. 10 THE PROPOSED REQUIREMENTS. CLASS SATISFIES RULE 23(a)’s 11 A. The Proposed Class Easily Satisfies the Numerosity Requirement. 12 Rule 23(a)(1) requires that a class be “so numerous that joinder of all 13 14 members is impracticable.” Fed. R. Civ. P. 23(a)(1). “‘[I]mpracticability’ does not 15 mean ‘impossibility,’ but only the difficulty or inconvenience of joining all 16 members of the class.” Franco-Gonzales v. Napolitano, No. 10-cv-02211, 2011 17 18 WL 11705815, at *6 (C.D. Cal. Nov. 21, 2011) (quoting Harris v. Palm Springs 19 Alpine Estates, Inc., 329 F. 2d 909, 913-14 (9th Cir. 1964)). No fixed number of 20 class members is required. Perez-Funez v. Dist. Dir., I.N.S., 611 F. Supp. 990, 995 21 22 (C.D. Cal. 1984). Moreover, where a plaintiff seeks injunctive and declaratory 23 relief, the “requirement is relaxed and plaintiffs may rely on [] reasonable 24 inference[s] arising from plaintiffs’ other evidence that the number of unknown and 25 26 27 future members of [the] proposed subclass . . . is sufficient to make joinder impracticable.” Arnott v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 579, 28 7 Case No. 18-cv-00428-DMS-MDD 1 586 (C.D. Cal. 2012) (quoting Sueoka v. United States, 101 Fed. App’x 649, 653 2 (9th Cir. 2004)). 3 Here, the number of class members far exceeds the requirement for 4 5 numerosity. Lawyers and advocates report that they are seeing hundreds of cases of 6 families separated after being apprehended together, with adults placed in ICE 7 8 custody and their children in ORR custody. See Brané Decl., Ex. 14, ¶ 5; Fluharty 9 Decl., Ex. 15, ¶ 2; Jimenez Decl., Ex. 13, ¶4. 10 11 The Court can thus reasonably conclude that the proposed class is 12 sufficiently numerous. See Cervantez v. Celestica Corp., 253 F.R.D. 562, 569 13 (C.D. Cal. 2008) (noting that “where the exact size of the class is unknown but 14 general knowledge and common sense indicate that it is large, the numerosity 15 16 requirement is satisfied”) (quotation marks omitted); see also, e.g., Hum v. Dericks, 17 162 F.R.D. 628, 634 (D. Haw. 1995) (“Courts have certified classes with as few as 18 thirteen members.”); Ark. Educ. Ass’n v. Bd. of Educ., 446 F.2d 763, 765-66 (8th 19 20 Cir. 1971) (class of 20 sufficient); Jordan v. Los Angeles County, 669 F.2d 1311, 21 1319 (9th Cir. 1982) (class of 39 sufficient), vacated on other grounds, 459 U.S. 22 810. 23 24 Second, in addition to the number of individuals who have already been 25 separated from their children, the proposed class also includes individuals who will 26 have a child taken from them. Hundreds of additional parents are at risk of losing 27 28 their children. The presence of such future class members renders joinder 8 Case No. 18-cv-00428-DMS-MDD 1 inherently impractical, thereby satisfying the purpose behind the numerosity 2 requirement. See, e.g, Ali v. Ashcroft, 213 F.R.D. 390, 408 (W.D. Wash. 2003), 3 4 aff’d, 346 F.3d 873 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th 5 Cir. 2005) (quotation marks omitted) (“[W]here the class includes unnamed, 6 unknown future members, joinder of such unknown individuals is impracticable 7 8 and the numerosity requirement is therefore met, regardless of class size.”) (quoting 9 Nat’l Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 10 11 1986)); Smith v. Heckler, 595 F. Supp. 1173, 1186 (E.D. Cal. 1984) (in injunctive 12 relief cases, “[j]oinder in the class of persons who may be injured in the future has 13 been held impracticable without regard to the number of persons already injured”); 14 Hawker v. Consovoy, 198 F.R.D. 619, 625 (D.N.J. 2001) (“The joinder of potential 15 16 future class members who share a common characteristic, but whose identity cannot 17 be determined yet is considered impracticable.”). 18 B. The Class Presents Common Questions of Law and Fact. 19 20 To satisfy commonality, Plaintiffs must show that “there are questions of law 21 or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2)’s 22 commonality requirement “has been construed permissively.” Preap v. Johnson, 23 24 303 F.R.D. 566, 585 (N.D. Cal. 2014), aff’d, 831 F.3d 1193 (9th Cir. 2016) 25 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)) (quotation 26 marks omitted). A plaintiff “need not show . . . that every question in the case, or 27 28 even a preponderance of questions, is capable of class wide resolution.” Parsons v. 9 Case No. 18-cv-00428-DMS-MDD 1 Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (quotation marks omitted). Rather, even 2 one shared legal issue can be sufficient. See, e.g., Mazza v. Am. Honda Motor Co., 3 4 Inc., 666 F.3d 581, 589 (9th Cir. 2012) (noting that “commonality only requires a 5 single significant question of law or fact”); Walters, 145 F.3d at 1046 (“What 6 makes the plaintiffs’ claims suitable for a class action is the common allegation that 7 8 9 10 11 the INS’s procedures provide insufficient notice.”). Moreover, “[i]ndividual variation among plaintiffs’ questions of law and fact does not defeat underlying legal commonality, because ‘the existence of shared 12 legal issues with divergent factual predicates is sufficient’ to satisfy Rule 23.” 13 Santillan v. Ashcroft, 2004 WL 2297990, at *10 (N.D. Cal. Oct. 12, 2004) (quoting 14 Hanlon, 150 F.3d at 1019). The commonality standard is even more liberal in a 15 16 civil rights suit like this one, in which “the lawsuit challenges a system-wide 17 practice or policy that affects all of the putative class members.” Armstrong v. 18 Davis, 275 F.3d 849, 868 (9th Cir. 2001) . 19 20 Plaintiffs’ lawsuit raises numerous legal questions common to the proposed 21 class. All class members assert the same due process right to family integrity. 22 Their constitutional claims present the same legal question of whether Defendants 23 24 may separate them from their minor children without any hearing and 25 demonstration that they are unfit parents. Their APA claims raise the common 26 legal issue of whether it is arbitrary and capricious for Defendants to separate a 27 28 parent and child without providing a reasoned explanation. And, should the 10 Case No. 18-cv-00428-DMS-MDD 1 government later provide reasons to separate class members from their children, 2 their claims will raise the common legal question of whether the Due Process 3 4 5 6 7 Clause permits Defendants to take away their children without providing a fair predeprivation process. Any one of these common issues, standing alone, is enough to satisfy Rule 8 23(a)(2)’s permissive standard. See Perez-Olano v. Gonzalez, 248 F.R.D. 248, 257 9 (C.D. Cal. 2008) (“Courts have found that a single common issue of law or fact is 10 11 sufficient.”) (citation omitted); Sweet v. Pfizer, 232 F.R.D. 360, 367 (C.D. Cal. 12 2005) (observing that “there must only be one single issue common to the proposed 13 class”) (quotation and citation omitted). 14 Plaintiffs and proposed class members also share a common core of facts: all 15 16 came to the United States with their children and were subsequently detained; all 17 have since been separated from their children without any allegation or showing 18 that they present a danger to their child; none have been given a fair process in 19 20 which to contest any allegations that they are an unfit parent. Plaintiffs and 21 proposed class members thus “have suffered the same injury”—separation from 22 their children. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting 23 24 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). And that common 25 injury is clearly “capable of classwide resolution.” Id. Should the Court agree that 26 Defendants’ policies or practices violate the Due Process Clause and/or the APA, 27 28 all who fall within the class will benefit from the requested relief: an injunction 11 Case No. 18-cv-00428-DMS-MDD 1 preventing Defendants from separating a parent in DHS custody from their children 2 without a hearing or a clear showing that the parent presents a danger to the child. 3 4 Thus, a common answer as to the legality of the challenged policies and practices 5 will “drive the resolution of the litigation.” Ellis v. Costco Wholesale Corp., 657 6 F.3d 970, 981 (9th Cir. 2011) (quoting Wal-Mart, 564 U.S. at 350). 7 8 9 10 11 Significantly, moreover, courts have made clear that even “[w]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists.” Evon v. Law 12 Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) (quotation marks 13 omitted); see also Walters, 145 F.3d at 1046 (“Differences among the class 14 members with respect to the merits of their actual document fraud cases, however, 15 16 are simply insufficient to defeat the propriety of class certification. What makes the 17 plaintiffs’ claims suitable for a class action is the common allegation that the INS’s 18 procedures provide insufficient notice.”); Arnott, 290 F.R.D. at 586-87 (factual 19 20 variations did not defeat certification where core legal issues were similar). 21 Moreover, any factual differences that may exist among Plaintiffs and proposed 22 class members are immaterial to their claims, which challenge Defendants’ 23 24 common separation practice as violating the Due Process Clause, the asylum 25 statute, and the APA. See Orantes-Hernandez v. Smith, 541 F. Supp. 351, 370 26 (C.D. Cal. 1982) (granting certification in challenge to common agency practices in 27 28 12 Case No. 18-cv-00428-DMS-MDD 1 asylum cases, even though the outcome of individual asylum cases would depend 2 on individual class members’ varying entitlement to asylum). 3 4 C. Typicality: Plaintiffs’ Claims Are Typical of Class Members’ Claims. 5 Rule 23(a)(3) requires that “the claims or defenses of the representative 6 parties [be] typical of the claims or defenses of the class.” The purpose of this 7 8 requirement is to “assure that the interest of the named representative aligns with 9 the interests of the class” as a whole. Hanon v. Dataproducts Corp., 976 F.2d 497, 10 508 (9th Cir. 1992). “Under the rule’s permissive standards, representative claims 11 12 are ‘typical’ if they are reasonably coextensive with those of the absent class 13 members.” Parsons, 754 F.3d at 685 (quoting Hanlon, 150 F.3d at 1020). “The 14 test of typicality is ‘whether other members have the same or similar injury, 15 16 whether the action is based on conduct which is not unique to the named plaintiffs, 17 and whether other class members have been injured by the same course of 18 conduct.’” Id. (citation omitted). 19 20 Plaintiffs’ claims are typical of the claims of the proposed class, for largely 21 the same reasons that the class presents common questions of law and fact. Each 22 proposed class member has suffered the same injury (separation from their 23 24 children), based on the same government practice (separating immigrant parents 25 and children), in violation of the same constitutional right (due process) and 26 statutory commands (asylum law and arbitrary and capricious review under the 27 28 13 Case No. 18-cv-00428-DMS-MDD 1 APA). Plaintiffs’ claims are not only typical of proposed class members, they are 2 nearly identical. 3 4 Moreover, as with commonality, any factual differences between Plaintiffs 5 and proposed class members are not material enough to defeat typicality. See, e.g., 6 Hanlon, 150 F.3d at 1020 (under “permissive” typicality standard, representative 7 8 claims need only be “reasonably co-extensive with those of absent class members; 9 they need not be substantially identical”); LaDuke v. Nelson, 762 F.2d 1318, 1332 10 (9th Cir. 1985) (“The minor differences in the manner in which the representative’s 11 12 Fourth Amendment rights were violated does not render their claims atypical of 13 those of the class.”); cf. Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) 14 (certifying Rule 23(b)(2) class despite differences in the exact nature of the harm 15 16 17 18 19 20 suffered by class members). D. Adequacy: Plaintiffs Will Adequately Protect the Interests of the Proposed Class, and Plaintiffs’ Counsel Are Qualified to Litigate this Action. Rule 23(a)(4) requires that “[t]he representative parties will fairly and 21 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy 22 depends on “the qualifications of counsel for the representatives, an absence of 23 24 antagonism, a sharing of interests between representatives and absentees, and the 25 unlikelihood that the suit is collusive.” Walters, 145 F.3d at 1046 (quotation marks 26 omitted). 27 28 14 Case No. 18-cv-00428-DMS-MDD 1 2 3 4 Plaintiffs’ counsel are deemed qualified when they can establish their experience in previous class actions and cases involving the same area of law. Lynch v. Rank, 604 F. Supp. 30, 37 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 5 1984), amended on reh’g, 763 F.2d 1098 (9th Cir. 1985). Here, putative Class 6 Counsel are attorneys from the ACLU Immigrants’ Rights Project and ACLU of 7 8 San Diego and Imperial Counties. See Declaration of Spencer Amdur (“Amdur 9 Decl.”), Ex. 16. 10 11 Collectively, putative Class Counsel have extensive and diverse experience 12 in complex immigration cases and class action litigation, and Class Counsel also 13 have sufficient resources to litigate this matter to completion. Id. Attorneys from 14 the ACLU Immigrants’ Rights Project and ACLU of San Diego and Imperial 15 16 Counties have been appointed class counsel and successfully litigated similar class 17 action lawsuits in this district and in courts across the country. Id.; see also, e.g., 18 Alfaro Garcia v. Johnson, No. 14-cv-1775, 2014 WL 6657591, at *15 (N.D. Cal. 19 20 2014); Rivera v. Johnson, 307 F.R.D. 539 at 542-43 (W.D. Wash. 2015); Franco- 21 Gonzales, 2011 WL 11705815, at *1; Preap, 303 F.R.D. at 570; Khoury v. Asher, 3 22 F. Supp. 3d 877, 878 (W.D. Wash. 2014); RILR v. Johnson, 80 F. Supp. 3d 164, 23 24 25 26 27 28 181 (D.D.C. 2015). Plaintiffs will fairly and adequately protect the interests of the proposed class, and therefore are adequate class representatives. Plaintiffs do not seek any unique or additional benefit from this litigation that may make their interests 15 Case No. 18-cv-00428-DMS-MDD 1 different from or adverse to those of absent class members. Instead, Plaintiffs’ aim 2 is to secure injunctive relief that will protect themselves and the entire class from 3 4 the Defendants’ challenged practices and enjoin the Defendants from further 5 violations. Nor do Plaintiffs or Class Counsel seek financial gain at the cost of 6 absent class members’ rights. Accordingly, Plaintiffs lack any antagonism with the 7 8 class, their interests align squarely with the other proposed class members, and no 9 collusion is present. 10 11 12 E. The Class Is Sufficiently Ascertainable. Although the Ninth Circuit has not yet ruled on whether the judicially 13 implied ascertainability requirement applies to classes certified under Rule 14 23(b)(2), other circuits have found that it does not. See Shelton v. Bledsoe, 775 15 16 F.3d 554, 563 (3d Cir. 2015) (“The nature of Rule 23(b)(2) actions, the Advisory 17 Committee’s note on (b)(2) actions, and the practice of many [] other federal courts 18 all lead us to conclude that ascertainability is not a requirement for certification of a 19 20 (b)(2) class seeking only injunctive and declaratory relief . . . .”); Shook v. El Paso 21 Cty., 386 F.3d 963, 972 (10th Cir. 2004) (“[M]any courts have found Rule 23(b)(2) 22 well suited for cases where the composition of the class is not readily 23 24 ascertainable.”); Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016), cert. 25 denied, 137 S. Ct. 2220 (2017) (“[A]scertainability is not an additional requirement 26 for certification of a (b)(2) class seeking only injunctive and declaratory relief.”); 27 28 Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir.1972) (no ascertainability 16 Case No. 18-cv-00428-DMS-MDD 1 requirement for Rule 23(b)(2) classes); accord In re Yahoo Mail Litig., 308 F.R.D. 2 577, 597-98 (N.D. Cal. 2015). 3 4 In any event, the proposed class is sufficiently ascertainable because it is 5 “administratively feasible” to ascertain whether an individual is a member. Greater 6 Los Angeles Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC, No. 13-cv-7172, 7 8 2014 WL 12561074, at *5 (C.D. Cal. May 6, 2014) (quotation marks omitted) 9 (finding ascertainable proposed class of individuals who are deaf or hard of hearing 10 11 and require closed captioning). Here, membership in the class is defined by clear 12 and objective criteria: class members are in immigration detention, their children 13 have been taken from them without a hearing and showing of unfitness, and their 14 children are held elsewhere by ORR. See supra at 3. These parameters are 15 16 “‘precise, objective, and presently ascertainable.’” O’Connor v. Boeing N. Am., 17 Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998) (observing that class definitions for 18 actions maintained under Rule 23(b)(2) involve less precision than actions for 19 20 damages requiring notice to the class); see also, e.g., Lamumba Corp. v. City of 21 Oakland, No. 05-cv-2712, 2007 WL 3245282, at *4 (N.D. Cal. Nov. 2, 2007) 22 (“Plaintiffs putative class is based on the objective factors of business ownership, 23 24 race, and indebtedness to the City, and therefore is sufficiently defined.”). And the 25 fact that some administrative process may be required to identify class members 26 does not undermine ascertainability. See, e.g., Moreno v. Napolitano, No. 11-cv- 27 28 5452, 2014 WL 4911938, at *6-7 (N.D. Ill. Sept. 30, 2014) (finding that the 17 Case No. 18-cv-00428-DMS-MDD 1 necessity of manually reviewing tens of thousands of detainer forms to identify 2 class members did not undermine ascertainability) (citing Young v. Nationwide 3 4 5 6 7 Mut. Ins. Co., 693 F.3d 532, 539 (6th Cir. 2012)). II. This Action Satisfies the Requirements of Rule 23(b)(2). In addition to satisfying the four requirements of Rule 23(a), a class must 8 also come within one of the subsections of Rule 23(b). Certification of a class 9 under Rule 23(b)(2) requires that “the party opposing the class has acted or refused 10 to act on grounds that apply generally to the class, so that final injunctive relief or 11 12 corresponding declaratory relief is appropriate respecting the class as a whole.” 13 Fed. R. Civ. P. 23(b)(2). In the Ninth Circuit, “[i]t is sufficient” to meet Rule 14 23(b)(2)’s requirements that “class members complain of a pattern or practice that 15 16 is generally applicable to the class as a whole.” Walters, 145 F.3d at 1047. Indeed, 17 Rule “23(b)(2) was adopted in order to permit the prosecution of civil rights 18 actions” like this one. Id. “‘The key to the (b)(2) class is the indivisible nature of 19 20 the injunctive or declaratory remedy warranted—the notion that the conduct is such 21 that it can be enjoined or declared unlawful only as to all of the class members or as 22 to none of them.’” Lyon v. ICE, 308 F.R.D. 203, 213 (N.D. Cal. 2015) (quoting 23 24 25 26 27 28 Wal-Mart, 131 S. Ct. at 2557). Rule 23(b)(2)’s requirements are plainly met here. Plaintiffs ask the Court to enjoin Defendants’ practice—common to all class members—of separating them from their children without a hearing and showing that they are unfit or present a 18 Case No. 18-cv-00428-DMS-MDD 1 danger to their children. If that practice violates due process or the APA, it does so 2 as to all proposed class members. A single injunction would protect both Plaintiffs 3 4 and the other class members from this same practice. See, e.g., Walters, 145 F.3d at 5 1047 (certifying Rule 23(b)(2) class based on Defendants’ practice of providing 6 deficient notice of deportation procedures). 7 8 9 10 11 This relief would benefit Plaintiffs as well as all members of the proposed class in the same fashion. No individual class member would be entitled to a different injunction or declaratory judgment. The requested relief would address 12 these policies or practices in a single stroke, and thus the proposed class plainly 13 warrants certification under Rule 23(b)(2). See Parsons, 754 F.3d at 689 (finding 14 declaratory and injunctive relief proper as to the whole class where “every 15 16 [member] in the proposed class is allegedly suffering the same (or at least a similar) 17 injury and that injury can be alleviated for every class member by uniform changes 18 in . . . policy and practice”). 19 20 Because Plaintiffs and proposed class members all have suffered or will 21 suffer the same constitutional and statutory violations as a result of the 22 government’s challenged practice, and because they seek singular injunctive and 23 24 corresponding declaratory relief that remedy those injuries, certification under Rule 25 23(b)(2) is proper. 26 27 28 19 Case No. 18-cv-00428-DMS-MDD 1 2 3 4 CONCLUSION Plaintiffs respectfully request that the Court grant this Motion and enter an order certifying the proposed class under Rule 23(b)(2); appoint Plaintiffs as Class 5 Representatives; and appoint the Plaintiffs’ Counsel from the ACLU Immigrants’ 6 Rights Project and the ACLU of San Diego and Imperial Counties as Class 7 8 Counsel. 9 10 Dated: March 9, 2018 11 12 13 14 15 16 17 18 19 20 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 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: (212) 549-2616 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 21 22 23 24 25 26 27 28 20 Case No. 18-cv-00428-DMS-MDD Ms. L. and Ms. C. v. U.S. Immigration and Customs Enforcement, et al. EXHIBITS TO MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION TABLE OF CONTENTS EXHIBIT 12. 13. 14. 15. 16. DOCUMENT Declaration of Ms. C (Restricted) Declaration of Mayra Jimenez Declaration of Michelle Brane Declaration of Shalyn Fluharty Declaration of Spencer E. Amdur PAGES 22-27 28-32 33-39 40-45 46-60 Page 21 Exhibit 12 Exhibit 12, Page 22 1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org *Admitted Pro Hac Vice Attorneys for Petitioners-Plaintiffs Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. L. and Ms. C., v. Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, Date Filed: March 9, 2018 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 RESTRICTED Services (“USCIS”); U.S. Department of Health DECLARATION OF MS. C. 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; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 26 27 Respondents-Defendants. 28 Exhibit 12, Page 23 1 2 3 4 5 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 12, Page 24 Exhibit 12, Page 25 Exhibit 12, Page 26 Exhibit 12, Page 27 Exhibit 13 Exhibit 13, Page 28 1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org *Admitted Pro Hac Vice Attorneys for Petitioners-Plaintiffs Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. L. and Ms. C., v. Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, Date Filed: March 9, 2018 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 DECLARATION OF MAYRA Services (“USCIS”); U.S. Department of Health JIMENEZ 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; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 26 27 Respondents-Defendants. 28 Exhibit 13, Page 29 1 2 3 4 5 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 13, Page 30 Exhibit 13, Page 31 Exhibit 13, Page 32 Exhibit 14 Exhibit 14, Page 33 1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org *Admitted Pro Hac Vice Attorneys for Petitioners-Plaintiffs Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 Ms. L. and Ms. C., Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, 13 v. 14 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; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 15 16 17 18 19 20 21 22 23 24 25 Date Filed: March 9, 2018 DECLARATION OF MICHELLE BRANE 26 27 Respondents-Defendants. 28 Exhibit 14, Page 34 1 2 3 4 5 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 14, Page 35 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Ms. L., Petitioner, v. CASE NO. 18-CV-00428-DMS-MDD 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. DECLARATION OF MICHELLE BRANÉ I, Michelle Brané, 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 been the Director of the Migrant Rights and Justice Program at the Women’s Refugee Commission since 2006. I am a graduate of the Georgetown University Law Center. The Women’s Refugee Commission conducts research, develops policy recommendations and advocates on behalf of displaced and refugee women, children, and 1 Exhibit 14, Page 36 families. I have been studying the practices around the detention of families and family separation due to immigration detention for over 10 years. 2. As the director of a program focused on advocating for the rights of migrants in the United States I regularly monitor practices and policies of the United States Department of Homeland Security (DHS) and supervise four additional staff. We conduct monitoring visits of U.S. immigration detention facilities around the country; conduct research on DHS and Health and Human Services, Office of Refugee Resettlement (HHS, ORR) practices with respect to border security and immigration policy and practice; work closely with legal service providers and social service agencies that provide services to immigrant men, women, and children; and interview migrants about their experiences in crossing the border, accessing asylum procedures, and in immigration detention. We publish reports and share our findings and recommendations with DHS, HHS, and Congress. My staff and I have visited over 45 adult, children, and family detention facilities. 3. Based on our research, my conversations with multiple people in my office and other offices – including legal service providers and social service providers for adults and children, and visits to the border and to detention centers, I understand that there is a large number of non-citizen parents in ICE detention who have been separated from their children, with the children being sent to separate facilities under the Office of Refugee Resettlement. 4. All of these families were apprehended together before being separated. In all of the cases, adults and parents have been separated and are held separately in detention. In some cases, both the parent and child are placed into immigration proceedings, but the 2 Exhibit 14, Page 37 child is taken away from the parent. In others, families were initially separated because the parent was prosecuted for criminal immigration violations although they announced a fear of return and intended to seek asylum or other fear-based claims for relief. In these cases, the parents were transferred to the custody of the Department of Justice Bureau of Prisons (BOP) and their children were placed in ORR custody. After release from BOP custody upon conclusion of their criminal case, the parents are returned to custody of ICE but are not reunited with their children. 5. The total number of cases has been difficult to track because neither DHS nor HHS keep trackable records of the separations, and the majority of immigration detainees do not have attorneys who can document their case. However, we have been able to identify separation of parents from children at the border in at least 429 cases collected from our own experience, legal service providers, attorneys, and social service agencies around the country. 6. While the Women’s Refugee Commission acknowledges that the separation of an immigrant child from an adult with whom they are traveling may be appropriate in certain cases where there is substantiated reason to suspect that the adult and child are not in fact related, or reason to suspect that the child is in imminent physical danger from the adult, this has not been shown in any way to be the case in the above referenced identified cases. 7. The children in these cases range from toddlers to young teenagers. 8. I have no reason to believe the practice of separating parents and their children is ending at any point in the future. In fact, I have been informed at various times off the record, by government officials, that there are discussions and plans in place to expand the practice. 3 Exhibit 14, Page 38 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 Washington, DC on March 8, 2018. ______________________________ 4 Exhibit 14, Page 39 Exhibit 15 Exhibit 15, Page 40 1 2 3 4 5 6 7 8 9 10 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org *Admitted Pro Hac Vice Attorneys for Petitioners-Plaintiffs Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. L. and Ms. C., v. Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, Date Filed: March 9, 2018 U.S. Immigration and Customs Enforcement (“ICE”); U.S. Department of Homeland Security (“DHS”); U.S. Customs and Border Protection DECLARATION OF SHALYN (“CBP”); U.S. Citizenship and Immigration Services (“USCIS”); U.S. Department of Health FLUHARTY 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; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 26 27 Respondents-Defendants. 28 Exhibit 15, Page 41 1 2 3 4 5 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 15, Page 42 Exhibit 15, Page 43 Exhibit 15, Page 44 Exhibit 15, Page 45 Exhibit 16 Exhibit 16, Page 46 1 2 3 4 5 6 7 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org *Admitted Pro Hac Vice Attorneys for Petitioners-Plaintiffs Additional counsel on next page UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. L. and Ms. C., v. Case No. 18-cv-00428-DMS-MDD Petitioners-Plaintiffs, Date Filed: March 9, 2018 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 DECLARATION OF Services (“USCIS”); U.S. Department of Health SPENCER E. AMDUR 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; Adrian P. Macias, El Paso Field Director, ICE; Frances M. Jackson, El Paso Assistant Field Office Director, ICE; Kirstjen Nielsen, Secretary of DHS; Jefferson Beauregard Sessions III, Attorney General of the United States; L. Francis Cissna, Director of USCIS; Kevin K. McAleenan, Acting Commissioner of CBP; Pete Flores, San Diego Field Director, CBP; Hector A. Mancha Jr., El Paso Field Director, CBP; Alex Azar, Secretary of the Department of Health and Human Services; Scott Lloyd, Director of the Office of Refugee Resettlement, 26 27 28 Respondents-Defendants. Exhibit 16, Page 47 18cv0428 1 2 3 4 5 Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 samdur@aclu.org 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Exhibit 16, Page 48 1 I, Spencer E. Amdur, make the following declaration based on my personal 2 knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 3 that the following is true and correct: 4 5 6 7 8 9 10 1. I am a Staff Attorney at the ACLU Immigrants’ Rights Project (IRP). IRP is co-counsel for Plaintiffs in the above-captioned case. I submit this declaration in support of Plaintiffs’ Motion for Class Certification to address the qualifications of Plaintiffs’ counsel to serve as Class Counsel in this proposed class action. 11 12 13 14 15 16 17 18 Lee Gelernt 2. Lee Gelernt has been an attorney with the American Civil Liberties Union since 1992. He currently holds the positions of Deputy Director of the ACLU’s national Immigrants’ Rights Project, and Director of the Project’s Program on Access to the Courts. 3. Mr. Gelernt is a 1988 graduate of Columbia Law School, where he 19 20 was a Notes and Comments Editor of the Law Review. After graduation, Mr. 21 Gelernt served as a law clerk to the late-Judge Frank M. Coffin of the First Circuit 22 U.S. Court of Appeals. 23 24 25 26 4. Mr. Gelernt is admitted to practice in New York. He has specializes in the area of immigration. He has argued dozens of notable civil rights cases at all levels of the federal court system, including in the United States Supreme Court, 27 28 the Courts of Appeals for the First, Second, Third, Fourth, Fifth, Sixth, Eighth, 1 Exhibit 16, Page 49 1 Ninth, and Eleventh Circuits, and in numerous district courts around the country. 2 He has been counsel in and argued many class action immigration cases, including 3 4 recently Hamama v. Adducci, __ F. Supp. 3d ___, 2017 WL 2953050 (E.D. Mich. 5 July 11, 2017); Devitri v. Cronen, No. CV 17-11842-PBS, 2017 WL 5707528 (D. 6 Mass. Nov. 27, 2017), Ibrahim v. Acosta, No. 17-CV-24574, 2018 WL 582520, at 7 8 9 10 *1 (S.D. Fla. Jan. 26, 2018), and Nak Kim Chhoeun v. Marin, 2018 WL 571503, at *1 (C.D. Cal. Jan. 25, 2018). He has also testified as an expert before the United States Senate on immigration issues. 11 12 5. In addition to his work at the ACLU, Mr. Gelernt is adjunct professor 13 at Columbia Law School, and for many years taught at Yale Law School as an 14 adjunct. 15 16 6. For his litigation work on immigration cases, Mr. Gelernt has received 17 several honors. In 2002 received the 13th Annual Public Interest Achievement 18 Award from Columbia University’s Public Interest Law Foundation. The 19 20 American Immigration Lawyers Association has also twice awarded him their 21 national prize for excellence in litigation for his civil rights work on behalf of the 22 immigrant community. 23 24 Judy Rabinovitz 25 7. 26 Judy Rabinovitz Judy Rabinovitz is Deputy Director and Director of Detention and Federal Enforcement Programs of IRP. She is admitted to practice in 27 28 New York and has been admitted to practice before numerous federal courts, 2 Exhibit 16, Page 50 1 including the U.S. Supreme Court; the U.S. Courts of Appeals for the First, Second, 2 Third, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits; and the U.S. 3 4 District Courts for the Central District of California, District of Colorado, Eastern 5 District of New York, and Southern District of New York. She graduated from 6 New York University Law School in 1985. She has worked at IRP since 1988. She 7 8 9 10 has also served as adjunct faculty at New York University Law School since 1997. 8. Ms. Rabinovitz is one of the nation’s leading civil rights attorneys working in the area of immigration detention. She was lead counsel and argued 11 12 before the U.S. Supreme Court in Demore v. Kim, 538 U.S. 510 (2003) (challenge 13 to mandatory detention statute), and played key roles in the litigation culminating in 14 Zadvydas v. Davis, 533 U.S. 678 (2001) (striking down indefinite detention of post- 15 16 final order deportees who could not be removed), and Clark v. Martinez, 543 U.S. 17 371 (2005) (holding that Zadvydas limitation on indefinite detention applies to 18 noncitizens apprehended at the border). 19 20 9. Ms. Rabinovitz has also served as lead counsel, co-counsel, or counsel 21 for amici curiae in numerous other detention cases in the federal courts of appeals, 22 including: Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (argued) (requiring 23 24 bond hearings for noncitizens detained six months or longer under post-final order 25 detention statute); Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (amicus counsel) 26 (requiring that the government justify continued prolonged immigration detention 27 28 by clear and convincing evidence); Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 3 Exhibit 16, Page 51 1 2010) (certifying class of noncitizens detained for six months without adequate 2 bond hearings while their immigration cases are pending); Nadarajah v. Gonzales, 3 4 443 F.3d 1069 (9th Cir. 2006) (holding that asylum seeker could not be subject to 5 prolonged and indefinite immigration detention as national security threat); Tijani 6 v. Willis, 430 F.3d 1241 (9th Cir. 2005) (ordering bond hearing for mandatory 7 8 detainee where removal proceedings were not “expeditious”); Castaneda v. Souza, 9 810 F.3d 15 (1st Cir. 2015) (en banc) (affirming injunction that held that mandatory 10 detention statute applies only where the immigration authorities take custody of an 11 12 individual upon their release from relevant criminal custody) (amicus counsel and 13 counsel of record in companion case, Gordon v. Holder, 13-2509); Gayle v. 14 Warden, Monmouth Cty. Correctional Institution, 838 F.3d 297 (3d Cir. 2016) 15 16 (class action challenging the mandatory detention of individuals with substantial 17 challenges to removal in New Jersey); Leslie v. Attorney General, 678 F.3d 265 (3d 18 Cir. 2012) (argued as amicus counsel in pro se case) (holding that detainees cannot 19 20 be penalized for the time required to pursue bona fide challenges to removal in 21 assessing reasonableness of their prolonged detention); Diop v. ICE/Homeland 22 Security, 656 F.3d 221 (3d Cir. 2011) (argued as amicus counsel in pro se case) 23 24 (holding that mandatory detention statute only authorizes such detention for a 25 “reasonable” period of time); Alli v. Decker, 650 F.3d 1007 (3d Cir. 2011) (holding 26 that immigration detainees are not barred from challenging their detention in a class 27 28 action); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) (argued) (holding that 4 Exhibit 16, Page 52 1 mandatory detention statute only authorizes such detention for a “reasonable” 2 period of time); Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003) (en banc) 3 4 5 6 7 8 (argued) (striking down indefinite detention of excludable noncitizens). 10. Ms. Rabinovitz has also served as lead counsel or co-counsel in district court litigation concerning the detention and due process rights of noncitizens facing removal. See, e.g., Hamama v. Adducci, __ F. Supp. 3d ___, 2017 WL 9 2953050, at *12 (E.D. Mich. July 11, 2017) (granting classwide stay of removal of 10 Iraqi nationals facing severe persecution in Iraq); R.I.L.R. v. Johnson, 80 F. Supp. 11 12 3d 164 (D.D.C 2015) (granting classwide preliminary injunction prohibiting 13 government from detaining women and children seeking asylum based on desire to 14 deter others from migrating). She has also served as co-counsel or amicus counsel 15 16 in other district court matters related to immigration detention. See, e.g., Alli v. 17 Decker, No. 4:09-cv-00698 (M.D. Pa), 644 F. Supp. 2d 535 (M.D. Pa. 2009), 650 18 F.3d 1007 (3d Cir. 2011) (class action challenging prolonged mandatory detention 19 20 21 22 of immigrants held in Pennsylvania). 11. Through these cases and others, Ms. Rabinovitz has come to have distinctive knowledge and specialized skill in the area of immigrants’ rights 23 24 litigation in the federal courts and immigration detention in particular. In addition, 25 Ms. Rabinovitz serves as a resource for nonprofit, pro bono, and private attorneys 26 litigating immigration detention cases throughout the country. She has provided 27 28 advice and editorial assistance to dozens of attorneys during this time, and shared 5 Exhibit 16, Page 53 1 IRP’s briefing in these and other cases on many occasions. Ms. Rabinovitz has also 2 taught continuing legal education workshops on immigration detention litigation. 3 4 5 6 7 8 9 10 Bardis Vakili 12. Bardis Vakili is a Senior Staff Attorney with the ACLU of San Diego & Imperial Counties (ACLU SDIC), licensed to practice before the courts of the State of California, the United States Court of Appeals for the Ninth Circuit, and United States District Courts for the Southern, Central, and Northern Districts of California. 11 12 13. Mr. Vakili has served as lead counsel or co-counsel in numerous cases 13 in the federal courts of appeals involving immigrants’ rights, including the rights of 14 detained asylum seekers. See Gomez-Sanchez v. Sessions, Case No. 14-72506 (9th 15 16 Cir.) (pending challenge to precedent decision by Board of Immigration Appeal 17 barring consideration of mental illness in eligibility for withholding of removal); 18 Vanegas Arrubla v. Holder, No. 07-72764 (9th Cir. 2011) (successful appeal of 19 20 denial of asylum to Colombian detainee), Kakla v. Holder, No. 08-72856 (9th Cir. 21 2008) (successful appeal of asylum case involving detained Iraqi ex-police officer). 22 23 24 25 26 14. Mr. Vakili has also served as lead counsel or co-counsel in numerous cases in federal district court involving immigrants’ rights, including class action cases. See, e.g., Santander-Leyva v. Baker, No. 08 CV 01485 (S.D. Cal. 2008) (habeas petition securing release of transgender immigrant detainee); Sanchez de 27 28 Gomez v. Baker, No. 10 CV 652 (S.D. Cal. 2010) (habeas petition securing release 6 Exhibit 16, Page 54 1 of mentally disabled immigrant detainee); Hamdi v USCIS Case No. 5:10 CV- 2 05995 (C.D. Cal 2011) (successful citizenship claim on behalf of Egyptian 3 4 national); Olivas v. Whitford, Case No. 17-CV-1434 (S.D. Cal 2014) (citizenship 5 claim against Border Patrol, appeal pending at the Ninth Circuit); Varela v. USCIS, 6 Case No. 17-CV-2490 (naturalization delay for deported U.S. veteran). Lopez- 7 8 9 10 Venegas v. Johnson, No. 13-cv-03972, ECF No. 104 (C.D. Cal. Feb. 25, 2015) (order approving class settlement securing, inter alia, return to the United States of immigrants removed through administrative voluntary departure); Cancino- 11 12 13 14 15 16 Castellar v. Nielsen, No. 17-CV-00491 (S.D. Cal 2017) (pending class action on behalf of immigrants detained for extended periods without presentment). 15. In addition, Mr. Vakili has extensive experience advocating for the rights of immigrant detainees in removal proceedings. As an Immigrants’ Rights 17 Consultant for the ACLU of Southern California, he has provided technical and 18 legal assistance to hundreds of pro se immigrant detainees in removal proceedings 19 20 in the Los Angeles area. In about four years as Political Asylum Director for Casa 21 Cornelia Law Center in San Diego, he has represented more than 100 immigrant 22 detainees in removal proceedings and assesses dozens of intakes every week from 23 24 detained immigrants facing removal proceedings. In his current position, he 25 performs monthly legal rights trainings to pro se immigrant detainees in Imperial 26 County. In 2008, he was a co-awardee of the Daniel Levy Award from the National 27 28 Lawyers Guild’s National Immigration Project. And in 2017, he was named a 7 Exhibit 16, Page 55 1 California Lawyer Attorney of the Year for his work on behalf of deported United 2 States veterans, including co-authoring a detailed report on the topic entitled 3 4 Discharged, Then Discarded. 5 Anand Balakrishnan 6 16. 7 8 9 10 Anand Balakrishnan is a Staff Attorney at the ACLU’s Immigrants’ Rights Project. He graduated from the Yale Law School in 2009. 17. Before joining the ACLU and between September of 2009 and September of 2014, he practiced as an attorney in the Law Office of Sheehan and 11 12 Reeve in New Haven, CT, with a primary focus on criminal defense in the state and 13 federal systems and a secondary focus on civil rights and impact litigation. During 14 this time, his federal criminal docket included trial and appeal in felonies and 15 16 capital prosecutions. His state criminal docket included representation of clients 17 charged with capital felony, murder and serious felonies at trial, appeal, and post- 18 conviction review. Some criminal matters included: United States v. Syed Talha 19 20 Ahsan, 3:06CR194 (D.Conn.) (JCH) (material support prosecution of individual 21 extradited from U.K. alleging support of al-Qaeda; sentenced to time served); 22 Daniel Webb v. Warden, CV00003239, 2011 WL 724774 (Conn. Sup. Ct. 2011) 23 24 (collateral challenge to death sentence); Vernon Horn v. Warden, CV010456995, 25 2014 WL 3397826 (Conn. Sup. Ct. 2014) (collateral challenge to murder 26 conviction); In re Death Penalty Disparity Claims, CV05-4000632, 2013 WL 27 28 8 Exhibit 16, Page 56 1 5879422 (Conn. Sup. Ct. 2013) (challenge to racial and other disparities in 2 administration of death penalty). 3 4 18. Experience (including class action experience) specific to federal court 5 challenges to immigration law includes: Hamama v. Adducci, __ F. Supp. 3d ___, 6 2017 WL 2953050 (E.D. Mich. July 11, 2017) (granting classwide stay of removal 7 8 of Iraqi nationals facing severe persecution in Iraq); Devitri v. Cronen, 2018 WL 9 661518 (D. Mass. Feb. 1, 2018); Gayle v. Warden, Monmouth Cnty Correctional 10 Institution, 838 F.3d 297 (3d Cir. 2016) (class action challenging the mandatory 11 12 detention of individuals with substantial challenges to removal in New Jersey); 13 R.I.L.R. v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (granting classwide 14 preliminary injunction prohibiting government from detaining women and children 15 16 seeking asylum based on desire to deter others from migrating); Rivera v. Holder, 17 307 F.R.D. 539 (W.D. Wash. 2015) (class action challenging immigration bond 18 procedures). 19 20 Spencer Amdur 21 19. 22 I am a Staff Attorney at the ACLU’s Immigrants’ Rights Project. I am a member of the bars of California and Pennsylvania, and I am admitted to practice 23 24 in the U.S. Courts of Appeals for the Fourth and Fifth Circuits, and the U.S. District 25 Courts for the Southern District of Ohio and Southern District of California. I 26 graduated from Yale Law School in 2013 and served as a Law Clerk to the 27 28 Honorable Judith W. Rogers of the U.S. Court of Appeals for the D.C. Circuit. 9 Exhibit 16, Page 57 1 Prior to my work at IRP, I was a Trial Attorney at the Federal Programs Branch of 2 the Civil Division within the U.S. Department of Justice. And before my clerkship, 3 4 5 6 7 8 9 10 I served as an Arthur Liman Public Interest Fellow at the Lawyers’ Committee for Civil Rights in San Francisco. 20. At IRP I litigate complex immigration-related cases at all levels of the federal courts. See, e.g., Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (staying in part a preliminary injunction of an Executive Order barring nationals of certain countries from entering the United States); City of El Cenizo v. 11 12 State of Texas, 264 F. Supp. 3d 744 (W.D. Tex. 2017) (enjoining parts of state 13 immigration law), stayed in part, 2017 WL 4250186 (5th Cir. Sept. 25, 2017); Roy 14 v. County of Los Angeles, No. 12-cv-9012, 2018 WL 914773 (C.D. Cal. Feb. 7, 15 16 2018) (granting summary judgment as to certain subclasses in class action 17 challenge to federal and local immigration detention policies); Texas v. Travis Cty., 18 272 F. Supp. 3d 973 (W.D. Tex. 2017) (dismissing lawsuit seeking declaration of 19 20 state immigration law’s constitutionality), appeal pending; P.K. v. Tillerson, 1:17- 21 cv-01533 (D.D.C. filed 2017) (challenge to State Department policy denying visas 22 to winners of the Diversity Visa Lottery); Al Mowafak v. Trump, No. 3:17-cv-557 23 24 (N.D. Cal. filed 2017) (challenge to restrictions on refugee admissions). I also 25 represent amici in a number of cases involving the federal government’s 26 administration of the immigration laws. See, e.g., State of Hawaii v. Trump, 871 27 28 F.3d 646 (9th Cir. 2017) (challenge to policy barring certain close family members 10 Exhibit 16, Page 58 1 of U.S. persons from entering the United States); City of Chicago v. Sessions, 264 2 F. Supp. 3d 933 (N.D. Ill. 2017) (granting injunction against immigration-related 3 4 spending conditions); City of Philadelphia v. Sessions, --- F. Supp. 3d ---, 2017 WL 5 5489476 (E.D. Pa. Nov. 15, 2017) (same); County of Santa Clara v. Trump, No. 17- 6 17480 (9th Cir.) (reviewing injunction of immigration-enforcement Executive 7 8 9 10 11 12 Order). 21. Outside the immigration context, I have served as counsel in a variety of cases raising complex questions of administrative law. See, e.g., Bd. of Ed. of the Highland Local Sch. Dist. v. U.S. Dep’t of Ed., 208 F. Supp. 3d 850 (S.D. Ohio) 13 (argued) (preliminary injunction proceedings involving APA challenges to the 14 Department of Education’s Title IX guidance); South Carolina v. United States, 15 16 221 F. Supp. 3d 684 (D.S.C. 2016) (argued) (APA challenge to Department of 17 Energy’s administration of nuclear nonproliferation program); TEXO ABC/AGC v. 18 Perez, No. 3:16-cv-1998, 2016 WL 6947911 (N.D. Tex. Nov. 28, 2016) (denying 19 20 preliminary injunction in APA challenge to a new Department of Labor regulation); 21 McCrory v. United States, 5:16-cv-238 (E.D.N.C. filed 2016) (APA challenge to 22 Department of Education interpretive guidance); Privacy Matters v. Dep’t of Ed., 23 24 25 26 0:16-cv-3015 (D. Minn. filed 2016) (same); Minnesota Children’s Hospital v. HHS, 0:16-cv-4064 (D. Minn. filed 2016) (APA challenge to Department of Health and Human Services policy guidance). 27 28 11 Exhibit 16, Page 59 Exhibit 16, Page 60

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