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

Filing 48

MOTION for Preliminary Injunction for Classwide Relief by Ms. C., Ms. L.. (Attachments: #1 Memo of Points and Authorities in Support of Classwide Preliminary Injunction and Exhibits)(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 Petitioners-Plaintiffs
Additional counsel on next page

*Admitted Pro Hac Vice

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Ms. L. et al.,

Case No. 18-cv-00428-DMS-MDD
Petitioners-Plaintiffs,

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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; 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,

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Respondents-Defendants.

Date Filed: March 19, 2018

Memorandum in Support of
Classwide Preliminary
Injunction

CLASS ACTION
Hearing Date: April 27, 2018
Time: TBD
Courtroom: 13A
Judge: Hon. Dana Sabraw

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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
TABLE OF AUTHORITIES .....................................................................................iii
INTRODUCTION ...................................................................................................... 1
STATEMENT OF FACTS ......................................................................................... 3
A. Plaintiff Ms. L.................................................................................................. 4
B. Plaintiff Ms. C. ................................................................................................ 6
ARGUMENT .............................................................................................................. 7

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I. THE CLASS MEMBERS ARE LIKELY TO SUCCED ON THE
MERITS OF THEIR CLAIMS. .................................................................. 8

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A. The Government’s Separation of Class Members and Their
Children Violates Due Process. ............................................................. 8

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1.

The class members are protected by due process. ........................ 8

2.

The separation of class members and their children is
unconstitutional absent a demonstration in a hearing that the
parent is unfit or presents a danger to the child. ......................... 11

B. The Government’s Separation of Class Members and Their
Children Violates the APA Because It Is Arbitrary and Capricious. .. 13
II. THE GOVERNMENT’S SEPARATION OF CLASS MEMBERS
FROM THEIR CHILDREN HAS CAUSED AND WILL CONTINUE
TO CAUSE IRREPARABLE INJURY. ................................................... 15

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III. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST
WEIGH DECIDELY IN FAVOR OF REUNITING CLASS
MEMBERS WITH THEIR CHILDREN. ................................................. 18

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CONCLUSION......................................................................................................... 20

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TABLE OF AUTHORITIES

2

Cases
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011)................................................................................ 8
Amoco Prod. Co. v. Village of Gambell,
480 U.S. 531 (1987) ............................................................................................. 18
Arc of Cal. v. Douglas,
757 F.3d 975 (9th Cir. 2014) ............................................................................ 7, 18
Arrington v. Daniels,
516 F.3d 1106 (9th Cir. 2008).............................................................................. 14
Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999) .............................. 3
Carrillo v. Schneider Logistics, Inc., No. 11-cv-8557, 2012 WL 556309, at *9
(C.D. Cal. Jan. 31, 2012) ......................................................................................... 3
cert. denied,
539 U.S. 941 (2003) ............................................................................................. 10
Chi Thon Ngo v. INS,
192 F.3d 390 (3d Cir. 1999) ................................................................................. 10
Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin.,
538 F.3d 1172 (9th Cir. 2008).............................................................................. 14
Duchesne v. Sugarman,
566 F.2d 817 (2d Cir. 1977) ................................................................................. 12
Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................................. 15
Encinco Motorcars, LCC v. Navarro,
136 S. Ct. 2117 (2016) ......................................................................................... 14
Halet v. Wend Investment Co,
672 F.2d 1305 (9th Cir. 1982).............................................................................. 12
Heartland Acad. Comm. Church v. Waddle,
427 F.3d 525 (8th Cir. 2005) ................................................................................ 13
Int’l Refugee Assistance Project v. Trump,
--- F.3d ---, 2018 WL 894413, at *18 (4th Cir. Feb. 15, 2018) ........................... 17
J.B. v. Washington County,
127 F.3d 919 (10th Cir.1997) ............................................................................... 17
Jordan by Jordan v. Jackson,
15 F.3d 333 (4th Cir. 1994) .................................................................................. 12
Judulang v. Holder, 132 S. Ct. 476, 487 (2011) ...................................................... 14

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Kaszuba v. Fidelity Nat’l Default Servs.,
2011 WL 601525 (S.D. Cal. Feb. 10, 2011) (Sabraw, J.) ...................................... 8
Kwai Fun Wong v. United States,
373 F.3d 952 (9th Cir. 2004) ...................................................................... 9, 10, 11
Lassiter v. Dep’t of Social Servs.,
452 U.S. 18 (1981) ............................................................................................... 12
Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001) ................................................................................ 12
Leiva-Perez v. Holder,
640 F.3d 962 (9th Cir. 2011) ................................................................................ 15
Lynch v. Cannatella,
810 F.2d 1363 (5th Cir.1987) ............................................................................... 10
Mathews v. Diaz,
426 U.S. 67 (1976) ................................................................................................. 9
McLaughlin v. Pernsley,
876 F.2d 308 (3d Cir. 1989) ................................................................................. 17
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) .......................................................................... 15, 19
Mt. St. Helens Mining & Recovery Ltd. Partnership v. United States,
384 F.3d 721 (9th Cir. 2004) ................................................................................ 13
Nicolson v. Pappalardo,
685 F.Supp.2d 142 (D. Me. 2010) ....................................................................... 17
Plyler v. Doe,
457 U.S. 202 (1982) ............................................................................................... 9
Quilloin v. Walcott, 434 U.S. 246, 255 (1978) ......................................................... 12
Rodriguez v. Robbins,
715 F.3d 1127 (9th Cir. 2013).............................................................................. 19
Rodriguez-Fernandez v. Wilkinson,
654 F.2d 1382 (10th Cir. 1981)............................................................................ 11
Rosales-Garcia v. Holland,
322 F.3d 386 (6th Cir. 2003) (en banc)................................................................ 10
Sammartano v. First Judicial District Court,
303 F.3d 959 (9th Cir. 2002) ................................................................................ 19
Santosky v. Kramer,
455 U.S. 745 (1982) ............................................................................................. 11

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Southerland v. City of New York,
680 F.3d 127 (2d Cir. 2012) ................................................................................. 13
Stanley v. Illinois,
405 U.S. 645 (1972) ............................................................................................. 15
Troxel v. Granville,
530 U.S. 57 (2000) (plurality op.) ........................................................................ 12
United States v. Loy,
237 F.3d 251 (3d Cir. 2001) ................................................................................. 13
United States v. Wolf Child,
699 F.3d 1082 (9th Cir. 2012).............................................................................. 12
Warsoldier v. Woodford,
418 F.3d 989 (9th Cir. 2005) ................................................................................ 15
Winter v. Nat’l Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................... 7
Wong Wing v. United States,
163 U.S. 228 (1896) ............................................................................................... 9
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ............................................................................................... 9
Zadvydas v. Davis,
533 U.S. 678 (2001) (Scalia, J., dissenting) ......................................................... 10
Statutes
5 U.S.C. § 706(2)(A) ................................................................................................ 13
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 ....................................................................................................................... 16

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INTRODUCTION
This case involves the government’s forcible separation of parents from their

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minor children. Hundreds of immigrant parents who have just arrived in the United
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States are having their children taken away from them. Many of these parents and

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their children are seeking asylum, and have been found by the government to have a

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credible fear of persecution in their home countries. And yet, without any

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demonstration that the parents pose any danger to their children, the government is

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separating these families, transferring the children to detention centers around the

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country and forcing them to sit in detention alone and afraid. This cruel practice

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inflicts enormous psychological harm, and could do lasting damage to the

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children’s emotional and cognitive well-being.

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The Plaintiffs are a proposed class of noncitizen parents whose children were

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taken from them and placed in detention facilities, often thousands of miles away,

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despite the lack of any demonstration by the government that Plaintiffs pose a

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danger to their children. There are hundreds of such cases around the country, and
the numbers of such cases have increased dramatically in recent months.
The experiences of the two Named Plaintiffs, Ms. L. and Ms. C., illustrate

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the government’s family separation practice. Ms. L., a Congolese asylum seeker,
arrived in the United States with her 7 year-old daughter, S.S. Although Ms. L
expressed her desire to apply for asylum—and subsequently passed a credible fear

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interview—her daughter was forcibly taken from her, with no explanation, and
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certainly no demonstration by the government that Ms. L. was a danger to S.S.

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They were kept apart for more than four months. After this lawsuit was filed, the

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government abruptly released Ms. L. and performed a DNA test, which confirmed

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that she is S.S.’s mother. Late in the night on March 16th, the government finally

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reunified Ms. L. and her daughter.

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Likewise, Ms. C. is a Brazilian asylum seeker who came to the United States
with her 14 year-old son, J. Although she told border guards that she planned to
seek asylum—and subsequently passed a credible fear interview—she was

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prosecuted for the misdemeanor of illegal entry and her son was taken from her.

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After she served a brief sentence, she was returned to immigration custody.

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However, without explanation, and certainly no demonstration by the government

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that Ms. C. is a danger to J., the government has refused to reunite them for the last

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five months.

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The proposed class is likely to succeed on the merits of its claims. As set

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forth below, and in an amicus brief by the country’s top immigration law

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professors, it has long been settled that all “persons” present in the United States are

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entitled to due process under the Fifth Amendment, regardless of their immigration

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status. It has likewise been established for more than a century that the Due

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Process Clause protects family unity, especially a parent and child. And, as

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explained in an amicus brief signed by dozens of children’s rights groups

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throughout the country, as well as a declaration submitted by the country’s
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foremost children’s law expert, the only reason the law recognizes as sufficient to

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tear a young child away from her parent is clear evidence of parental abuse or

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unfitness. The government has not demonstrated any such evidence for any of the
class members.
The government’s separation practice also violates the Administrative

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Procedure Act (APA) because it is arbitrary and capricious. The government has

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given no reason for its family separation practice, much less a reasoned explanation

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that would justify such an extraordinary measure. Defendants’ harmful and

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unexplained practice therefore contravenes the APA’s basic requirement of

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reasoned government action.

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Plaintiffs have moved for class certification. See ECF No. 42. In this

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motion, Plaintiffs seek a classwide preliminary injunction, upon this Court either

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granting or provisionally granting the class certification motion. See, e.g., Carrillo

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v. Schneider Logistics, Inc., No. 11-cv-8557, 2012 WL 556309, at *9 (C.D. Cal.

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Jan. 31, 2012) (“courts routinely grant provisional class certification for purposes of

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entering [preliminary] injunctive relief” under Rule 23(b)(2)) (citing Baharona-

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Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)).

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STATEMENT OF FACTS

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Plaintiffs are a proposed class of immigrant parents who have been forcibly

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separated from their children upon entering the United States. The proposed Rule

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23(b) class is defined as:
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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.

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There are hundreds of class members across the country. See Declaration of

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Michelle Brané, ECF No. 42-1, Ex. 14, ¶ 5 (noting more than 400 cases of parent-

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child separation); Declaration of Shalyn Fluharty, ECF No. 42-1, Ex. 15, ¶ 2.

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(estimating hundreds of children who have been separated from a parent at the

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border); Declaration of Mayra Jimenez, Director of the Children’s Program at

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RAICES, ECF No. 42-1, Ex. 13, ¶ 4 (“We have seen over 100 situations of children

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separated from their parents at the time of apprehension and continue to see

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more.”); Declaration of Jessica Jones, Ex. 18, ¶ 5-8 (describing marked increase

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since August 2017).
The Plaintiff Class is represented by two Representative Plaintiffs, Ms. L and
Ms. C, whose stories are emblematic of other class members’ experiences.

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A. Plaintiff Ms. L.

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After fleeing the Democratic Republic of Congo with her 7 year-old

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daughter, Ms. L. presented herself to border guards at the San Ysidro Port of Entry

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on November 1, 2017. She expressed fear of returning to the Congo, was given a

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credible fear interview, and the asylum officer determined that she had a credible

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fear of persecution. Ms. L. was therefore placed into formal removal proceedings

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to pursue her asylum claim. See Ms. L. Decl., ECF No. 13-1, Ex. 10 ¶ 2; Lopez

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Decl., ECF No. 13-1, Ex. 9 ¶ 4.1

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When they initially arrived in the United States, Ms. L. and her daughter,

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S.S., were detained together. Four days later, however, Ms. L.’s child was taken

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from her. Defendants did not tell Ms. L. why they were taking her child away.

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They nonetheless removed S.S. from her mother and transferred her 2,000 miles

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away to a detention facility in Chicago, with the little girl frantically screaming that

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she did not want to leave her mommy. The government has never alleged that S.S.

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would not be safe with her mother, or that Ms. L. is not a fit parent. And yet

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Defendants did not allow Ms. L. and her child to see each other for over four

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months. Each time they were able to speak on the phone, S.S. was crying and

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afraid. Ms. L. was likewise frightened, depressed, and unable to eat or sleep. See

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Ms. L. Decl. ¶¶ 3-6.

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After Ms. L. filed this lawsuit and moved for a preliminary injunction,

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Defendants released her from custody on March 6, 2018. They informed her that

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she would be released mere hours in advance, with no arrangements for where she

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would stay. Her daughter remained in custody alone in Chicago, until they finally

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released her the night of March 16.

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In response to this lawsuit, Defendants suggested that they had separated Ms.

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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.
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L. and S.S. to ensure that there was a genuine parental relationship. See Defs’

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Response to Pl. Mot. To Expedite, ECF No. 28, at 3. Yet Defendants did not ever

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tell Ms. L. they had doubts about the relationship, nor did they attempt to conduct a

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DNA test during the four months Ms. L. and S.S. were separated. Only after this

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lawsuit was filed was a DNA test conducted, which establishes that Ms. L. is S.S.’s

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mother. See Notice of DNA Test Results, ECF No. 44.

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B. Plaintiff Ms. C.

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Ms. C. and her 14 year-old son, J., fled Brazil to seek asylum and came to the

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United States in late August 2017. After she entered the United States a few feet, a

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border guard approached her, and she explained that she wanted to apply for

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asylum. Although she was seeking asylum, Ms. C. was nonetheless prosecuted for

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entering the country illegally, a misdemeanor for which she spent approximately 25

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days in jail. When Ms. C. was sent to jail for this misdemeanor conviction, her son

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J. was taken away from her and sent to a detention facility in Chicago.

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When she was finished serving her misdemeanor sentence on September 22,

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2017, Ms. C. was transferred to an immigration detention facility, the El Paso

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Processing Center. She was given, and passed, a credible fear asylum interview,

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and was put in removal proceedings, where she is applying for asylum. In early

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January she was transferred again to the West Texas Detention Facility, which is

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also known as Sierra Blanca. See Ms. C. Decl., ECF No. 42-1, Ex. 12, ¶ 2-4.2

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The exhibits are numbered continuously from the beginning of the case.
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Ms. C. has not seen her son J. since he was taken from her last year. Even

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after Ms. C. was released from jail and sent to an immigration detention facility,

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Defendants did not reunite her with her son. The government has never alleged,

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much less demonstrated, that J. would not be safe with his mother or that Ms. C. is

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an unfit parent. 3 See Ms. C. Decl. ¶ 5-7.

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Ms. C. is desperate to be reunited with her son, who has been having a

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difficult time emotionally since being separated from his mother. Ms. C. worries

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about him constantly and does not know when she will be able to see him. They

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have only spoken on the phone a handful of times since they were forcibly

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separated by Defendants. See Ms. C. Decl. ¶ 7-10.

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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).

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Courts evaluate these factors on a “sliding scale.” Arc of Cal. v. Douglas,

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757 F.3d 975, 983 (9th Cir. 2014) (quotation marks omitted). A “stronger showing

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of irreparable harm to plaintiff might offset a lesser showing of likelihood of

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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.
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success on the merits.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

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1131 (9th Cir. 2011). Thus, where the balance of hardships “tips sharply towards

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the plaintiff,” the plaintiff need only demonstrate “serious questions going to the

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merits.” Kaszuba v. Fidelity Nat’l Default Servs., 2011 WL 601525, at *1 (S.D.

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Cal. Feb. 10, 2011) (Sabraw, J.) (quotation marks omitted).

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I. THE CLASS MEMBERS ARE LIKELY TO SUCCED ON THE MERITS
OF THEIR CLAIMS.

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Plaintiffs are likely to succeed on the merits of their due process claim. See

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infra Section A. They are also likely to succeed on their arbitrary–and-capricious

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claim under the Administrative Procedure Act (APA). See infra Section B.

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Accordingly, this case can be decided on either constitutional or non-constitutional

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grounds.4

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A.

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The Government’s Separation of Class Members and Their
Children Violates Due Process.

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

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Ms. C., and the proposed class. See infra Section A.1. The separation of Plaintiffs

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from their children patently violates due process because there has been no

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demonstration that the class members are unfit parents. See infra Section A.2.

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1.

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The class members are protected by due process.

The Due Process Clause, by its terms, applies to any “person,” not just
citizens. And the Supreme Court has further held that the Clause applies to all
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At this time, Plaintiffs are not moving on the other claim in the complaint: that
family separation violates the asylum statutes (Count II).
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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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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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For purposes of the due process analysis in this case, it is of no consequence

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that Ms. L. and S.S., and some class members, presented themselves at a port of

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entry before the government detained them. Individuals who present themselves at

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a port of entry are considered “arriving” noncitizens and lack certain procedural due

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process rights to challenge their exclusion from the country. See, e.g., Kwai Fun

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Wong v. United States, 373 F.3d 952, 971-72 (9th Cir. 2004). Here, however,

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detained arriving noncitizens’ right to remain with their children is a substantive

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due process right, and has nothing to do with their eligibility to be formally

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admitted into the United States. And there is no question that all persons, whether

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arriving or not, have substantive due process rights. Indeed, as Justice Scalia

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pointed out, if arriving noncitizens, who are physically on U.S. soil, lacked
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substantive due process rights, it would mean border agents could literally do

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anything, including “tortur[ing]” such individuals. Zadvydas v. Davis, 533 U.S.

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678, 704 (2001) (Scalia, J., dissenting) (“I am sure [that people with no right to
enter the country] cannot be tortured . . . .”). 5

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Accordingly, the Ninth Circuit and other courts have made clear that even

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arriving noncitizens stopped at a port of entry have substantive due process rights.

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See Law Professors’ Amicus Br., ECF No. 23-1, at 3-7; Kwai Fun Wong, 373 F.3d

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at 973 (holding that non-admitted aliens, who may lack certain procedural due

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process rights with respect to admission, are nonetheless protected by the due

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process clause); Chi Thon Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) (“Even an

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excludable alien is a ‘person’ for purposes of the Fifth Amendment and is thus

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entitled to substantive due process.”); Rosales-Garcia v. Holland, 322 F.3d 386,

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

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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

23
24
25
26
27
28

5

Arriving noncitizens like Ms. L. are actually on U.S. soil when they present
themselves, 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 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).
10

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1

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

2

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

3
4
5

may not be ‘punished’ without being accorded the substantive and procedural due
process guarantees of the Fifth Amendment.”).6

6

2.

7
8
9
10
11

The separation of class members and their children is
unconstitutional absent a demonstration in a hearing that
the parent is unfit or presents a danger to the child.

The Due Process Clause forbids the government from separating children
from their parents absent a clear showing that the parent is unfit or is endangering

12

the child, and that separation is thus necessary to protect the child. The government

13

has not made that showing for any of the class members.

14

The Supreme Court has long recognized family integrity to be a core interest

15
16

protected by the Constitution. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753

17

(1982) (there is “a fundamental liberty interest of natural parents in the care,

18

custody, and management of their child”); Troxel v. Granville, 530 U.S. 57, 65-66

19
20
21
22
23
24
25
26
27
28

6

In the circumstances of this case, Ms. L.’s and other arriving aliens’ substantive
due process rights also carry with them 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 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, if the government
were ever to come forward with any actual grounds to justify taking away a child
from a parent who presented herself at the border, the parent would certainly be
entitled to a hearing. Otherwise, the government could simply allege that Plaintiffs
were unfit caretakers and rip their children away, without any process.
11

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1

(2000) (plurality op.) (“[T]he interest of parents in the care, custody, and control of

2

their children [] is perhaps the oldest of the fundamental liberty interests recognized

3
4

by this Court.”) (collecting cases); Lee v. City of Los Angeles, 250 F.3d 668, 685

5

(9th Cir. 2001) (“It is well established that a parent has a fundamental liberty

6

interest in the companionship and society of his or her child.”) (quotation marks

7
8

omitted); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) (“[T]he most

9

essential and basic aspect of familial privacy [is] the right of the family to remain

10
11
12

together without the coercive interference of the awesome power of the state.”).
Courts have thus been loath to allow the government to separate children

13

from their parents (particularly children as young as 7 years old). See, e.g., United

14

States v. Wolf Child, 699 F.3d 1082, 1092 (9th Cir. 2012) (“Interference with” the

15
16

“fundamental right to familial association” “requires ‘a powerful countervailing

17

interest.’”) (quoting Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27 (1981));

18

Halet v. Wend Investment Co, 672 F.2d 1305, 1310-11 (9th Cir. 1982) (same);

19
20

Jordan by Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994) (“[T]he relationship

21

between parent and child [is] inviolable except for the most compelling reasons.”).

22
23

As the courts have further made clear, separation may not occur absent a

24

clear demonstration that the parent is unfit or is abusing or neglecting the child.

25

See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“[T]he Due Process Clause

26

would be offended if a State were to attempt to force the breakup of a natural

27
28

family . . . without some showing of unfitness and for the sole reason that to do so
12

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1

was thought to be in the children’s best interest.”); United States v. Loy, 237 F.3d

2

251, 269-70 (3d Cir. 2001) (“[W]here there is insufficient evidence to support a

3
4

finding that children are potentially in danger from their parents, the state’s interest

5

cannot be said to be ‘compelling,’ and thus interference in the family relationship is

6

unconstitutional.”); Southerland v. City of New York, 680 F.3d 127, 152 (2d Cir.

7
8

2012) (family-integrity interest “is counterbalanced by the compelling

9

governmental interest in the protection of minor children”); Heartland Acad.

10
11
12

Comm. Church v. Waddle, 427 F.3d 525, 534 (8th Cir. 2005).
The government has offered no legitimate basis for taking Plaintiffs’

13

children away. The government provided no evidence that Ms. L. or Ms. C. abused

14

or neglected their children, or that they are unfit parents, to justify their separation

15
16

from their children for four and five months, respectively. And for other class

17

members, by definition, the government has not demonstrated abuse, neglect, or

18

other unfitness in any kind of hearing.

19
20

The Plaintiffs and class members’ separation thus violates due process.

21

B.

22

The Government’s Separation of Class Members and Their
Children Violates the APA Because It Is Arbitrary and
Capricious.

23

Courts must “set aside” an agency decision that is “arbitrary” or “capricious.”

24
25

5 U.S.C. § 706(2)(A). Under this standard, “a reviewing court must determine

26

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

27

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

28

the agency must “supply a reasoned basis for the agency’s action.” Ctr. for
13

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1

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

2

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

3
4

The government has provided no reason at all for its family separation

5

practice. See, e.g., Ms. L. Decl., Ex. 10 ¶ 3 (explaining that when Defendants took

6

Ms. L.’s 7 year-old child away from her, they did not tell her why); Ms. C. Decl.,

7
8

Ex. 12, ¶ 7-10. Defendants complete failure to explain such consequential

9

decisions is quintessential arbitrary government action. See Encinco Motorcars,

10
11

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

12

when “the agency . . . gave almost no reasons at all”); Arrington v. Daniels, 516

13

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

14

decision,” the agency’s “lack of explanation for its choice renders its decision

15
16

arbitrary and capricious”). The government has facilities designed precisely to

17

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

18

shelters that exist for this purpose.

19
20

Where “high stakes” are involved, as is the case in the separation of families,

21

an agency policy must provide a rational explanation that takes all relevant factors

22

into account. See Judulang v. Holder, 132 S. Ct. 476, 487 (2011) (finding Board of

23
24

Immigration Appeals policy “arbitrary and capricious” where rules bore “no

25

connection to the goals of the deportation process or the rational operation of the

26

immigration laws”). The government has failed to provide any reasons that could

27
28

possibly justify the trauma it is inflicting on young children and their parents.
14

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1
2
3
4

II.

THE GOVERNMENT’S SEPARATION OF CLASS MEMBERS
FROM THEIR CHILDREN HAS CAUSED AND WILL CONTINUE
TO CAUSE IRREPARABLE INJURY.
Defendants have violated and—unless enjoined—will continue to violate the

5

constitutional rights of Plaintiffs and the class they seek to represent. “When an

6

alleged deprivation of a constitutional right is involved, most courts hold that no

7
8

further showing of irreparable injury is necessary.” Warsoldier v. Woodford, 418

9

F.3d 989, 1001-02 (9th Cir. 2005) (indicating that only a “colorable claim” of

10
11

constitutional violation is needed to establish irreparable harm at the preliminary

12

injunction stage) (quotations and citation omitted); Melendres v. Arpaio, 695 F.3d

13

990, 1002 (9th Cir. 2012) (“[T]he deprivation of constitutional rights

14

‘unquestionably constitutes irreparable injury’”) (quoting Elrod v. Burns, 427 U.S.

15
16
17
18

347, 373 (1976)).
But the injury here is not just the harm that generally flows from a
constitutional violation. The trauma of family separation causes especially severe

19
20

irreparable injuries, particularly where it involves young children. See Stanley v.

21

Illinois, 405 U.S. 645, 647 (1972) (“[P]etitioner suffers from the deprivation of his

22

children, and the children suffer from uncertainty and dislocation.”); Leiva-Perez v.

23
24

Holder, 640 F.3d 962, 969-70 (9th Cir. 2011) (“separation from family members”

25

constitutes irreparable harm) (quotation marks omitted).

26
27
28

The American Academy of Pediatrics has denounced Defendants’ practice of
separating immigrant children from their parents, explaining that the “[s]eparation
15

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1

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

2

there are concerns for [the] safety of the child at the hand of [the] parent.” 7 That

3
4

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

5

professionals across multiple fields from around the country, including

6

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

7
8

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

9

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

10
11
12

Decl., Ex. 4, ¶ 1; Linton Decl., Ex. 5 ¶ 1; Shapiro Decl., Ex. 6 ¶ 1; Fortuna Decl.,
Ex. 7 ¶ 1; Melikian Decl., Ex. 8 ¶ 1.

13
14

As these medical experts observe, there is an “overwhelming body of
scientific literature” that is “replete with evidence of the irreparable harm and

15
16

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

17

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

18

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

19
20

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

21

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

22

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

23
24

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

25

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

26
27
28

7

Policy Statement, Am. Acad. of Pediatrics, Detention of Immigrant Children, Mar.
2017, http://pediatrics.aappublications.org/content/early/2017/03/09/peds.20170483.
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1

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

2

them for the remainder of their lifespan.”).

3
4

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

5

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

6

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

7
8

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

9

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

10
11

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

12

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

13

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

14

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

15
16

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

17

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

18

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

19
20

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

21

Cir. Feb. 15, 2018).

22
23

These harms are magnified by other traumatic events recently experienced by

24

Ms. L., Ms. C., other class members, and their children, including the fact that they

25

had to flee from their homes, and are now detained in a foreign country. Children

26

who have faced recent trauma have a “heightened risk” of long-term emotional

27
28

damage when they are separated from their parents. Fortuna Decl., Ex. 7 ¶ 8; see
17

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Shapiro Decl., Ex. 6 ¶¶ 8-9 (describing traumatic context of detention). The

2

reasons are clear to any parent and confirmed by the scientific literature. “Children

3
4

need their parent’s physical presence to successfully recover from traumatic events

5

in their lives.” Melikian Decl., Ex. 8 ¶ 6. When they lose that parental buffer, they

6

are susceptible to what pediatricians and psychiatrists have termed “toxic stress,”

7
8

Linton Decl., Ex. 4 ¶ 4.b, which “threatens the developing brain and is associated

9

with subsequent development of physical health problems such as diabetes and

10

heart disease, mental health problems, and school failure,” Linton Decl., Ex. 4 ¶

11
12

4.c.

13
14

Defendants’ actions are thus “doubly harmful,” because they impose the new
trauma of separation while robbing Plaintiffs’ and class members’ young children

15
16

of the parental buffer to cope with that and other traumas. Shapiro Decl., Ex. 6 ¶

17

13. Every day they are separated increases this harm and risks lasting damage. See

18

Pena Decl., Ex 2 ¶ 9; Oo & Schmidt Decl., Ex. 1 ¶ 7.

19
21

THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST WEIGH
DECIDELY IN FAVOR OF REUNITING CLASS MEMBERS WITH
THEIR CHILDREN.

22

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

20

23

III.

24

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

25

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

26

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

27
28

relief requested here would cause no injury to Defendants, since a government
18

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1

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

2

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

3
4

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

5

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

6

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

7
8
9
10
11

974 (9th Cir. 2002)).
Moreover, the particular and ongoing harms to Plaintiffs and other class
members and their young children in this case far outweigh any injury Defendants

12

might claim to suffer. Given this harm, documented by medical experts, the

13

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

14

reuniting the class members with their children, and barring Defendants from

15
16

continuing to separate families in the absence of a demonstration in a hearing that

17

the parent is unfit or presents a danger to the child.

18

*

*

*

19
20

Plaintiffs respectfully request that they and their children—along with other

21

class members and their children—be released so they can be reunited in a non-

22

governmental shelter, or alternatively, that they be detained together in a

23
24

government family detention center. But one way or the other, they should be

25

reunited, to end an ordeal that no parent and child should ever have to endure.

26

Plaintiffs also respectfully request that the court preliminarily enjoin Defendants’

27
28

practice of separating families in the absence of a demonstration in a hearing that
19

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1

the parent is unfit or presents a danger to the child.

2

CONCLUSION

3
4

The Court should grant the preliminary injunction and order Defendants to

5

reunite Plaintiffs and other class members with their children, and to discontinue

6

their family separation practice.

7
8
9
10
11
12
13
14
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16
17
18
19

Dated: March 19, 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]

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21

*Admitted Pro Hac Vice

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18cv0428

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CERTIFICATE OF SERVICE
I hereby certify that on March 19, 2018, I electronically filed the foregoing

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4
5
6

with the Clerk for the United States District Court for the Southern District of
California by using the appellate CM/ECF system. A true and correct copy of this
brief has been served via the Court’s CM/ECF system on all counsel of record.

7
8

/s/ Lee Gelernt
Lee Gelernt, Esq.

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18cv0428

1

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

2
3

EXHIBITS TO MEMORANDUM IN SUPPORT OF MOTION FOR
CLASSWIDE PRELIMINARY INJUNCTIVE RELIEF

4

TABLE OF CONTENTS

5
6
7
8

Exhibit
17
18
19
20

Document
Declaration of Martin Guggenheim
Declaration of Jessica Jones
Declaration of Denis Gilman
Declaration of Deborah Anker

Pages
23 - 34
35 - 44
45 - 51
52 - 56

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18cv0428

EXHIBIT 17

EXHIBIT 17, Page 23
18cv0428

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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: [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
*Admitted Pro Hac Vice
Additional counsel on next page
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

11
12

Ms. L., et al.,

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 DECLARATION OF
(“DHS”); U.S. Customs and Border Protection
PROFESSOR MARTIN
(“CBP”); U.S. Citizenship and Immigration
GUGGENHEIM
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
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24
25
26
27
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Respondents-Defendants.
EXHIBIT 17, Page 24
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: [phone]
F: [phone]
[e-mail]

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EXHIBIT 17, Page 25
18cv0428

1

I, Martin Guggenheim, hereby declare, pursuant to 28 U.S.C. § 1746:

2

1.

I am the Fiorello LaGuardia Professor of Clinical Law at New

3

York University School of Law and a Founding Board Member of the Center for

4

Family Representation. I have argued leading cases on the termination of parental

5

rights in the Supreme Court of the United States and am the author of seven books

6

and more than fifty book chapters and articles on children and parents.

7

Throughout the years, I have provided legislative testimony, including before the

8

United States House of Representatives Judiciary Committee, Subcommittee on

9

the Constitution and Civil Justice; the former United States Senate Committee on

10

the Judiciary, Subcommittee on Juvenile Justice; and the New York State

11

Assembly Standing Committee on Children and Families.

12

2.

I am familiar with the Amended Complaint for Declaratory and

13

Injunctive Relief with Class Action Allegations (ECF No. 32) (the “Amended

14

Complaint”) filed in this action and with the Government’s Response in

15

Opposition to Petitioner-Plaintiff’s Motion to Expedite the Preliminary Injunction

16

Schedule (ECF No. 28) (the “Response”).

17

3.

I am personally familiar with the facts and opinions set forth in

18

this declaration. If called as a witness, I could and would competently testify to the

19

matters stated herein.

20
21

EDUCATION AND PROFESSIONAL BACKGROUND
4.

I attended and graduated from the State University of New

22

York (Buffalo) in 1968, where I earned a Bachelor of Arts in sociology. Following

23

graduation, I enrolled in the New York University School of Law (“NYU Law”),

24

and I graduated with a Juris Doctor in 1971.

25

5.

Thereafter, I joined The Legal Aid Society’s Juvenile Rights

26

Division. I served as Staff Counsel in the Trial Division from 1971 to 1972, and as

27

Trial Attorney for the Special Litigation Unit from 1972 to 1974. I then joined the

EXHIBIT 17, Page 26
18cv0428

1

American Civil Liberties Union’s Juvenile Rights Project and, from 1975 to 1976,

2

I served as Acting Director of the Project.

3

6.

I began teaching at NYU Law in 1973, first as a Clinical

4

Instructor in Law, then as an Assistant Clinical Professor of Law, then as an

5

Associate Clinical Professor of Law, and then as a Professor of Clinical Law. At

6

NYU Law, I have taught the Family Defense Clinic, the Advanced Family Defense

7

Clinic, and a seminar titled “Child, Parent & State.” Presently, I serve with

8

Christine Gottlieb as Co-Director of the NYU Law Family Defense Clinic (the

9

“Family Defense Clinic”). In 2015, I received the Podell Distinguished Teaching

10

Award from NYU Law, and in 2017, I received the Kathryn A. McDonald Award

11

from the New York City Bar Association for excellence in service to the Family

12

Court.

13

7.

The Family Defense Clinic, which I founded in 1990, pioneered

14

a model of representation in which lawyers and social workers collaborate on

15

interdisciplinary teams to protect family integrity and help families access services

16

that keep children safe and out of foster care. As Co-Director of the Clinic, I

17

represent parents and foster parents in child abuse and neglect cases, termination of

18

parental rights proceedings, and cases involving records in the New York

19

Statewide Central Register of Child Abuse and Maltreatment. I also regularly draft

20

and consult on appeals of child abuse and neglect matters and amicus briefs in

21

cases involving children’s and parents’ rights. In addition, I regularly train lawyers

22

throughout the country on child welfare law and practice. I consult with and

23

provide litigation support to public interest organizations and law firms providing

24

pro bono counsel to families involved with the child welfare system.

25

8.

My publications in the field of child welfare law include:

26

What’s Wrong With Children’s Rights (2005); Somebody’s Children: Sustaining

27

the Family’s Place in Child Welfare Policy, 113 Harv. L. Rev. 1716 (2000)

28

(reviewing Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster
EXHIBIT 17, Page 27
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1

Drift, and the Adoption Alternative (1999)); The Right to be Represented but Not

2

Heard: Reflections on Counsel for Children in Judicial Proceedings, 59 N.Y.U. L.

3

Rev. 76 (1984), reprinted in David Westfall, Family Law (1994); The Foster Care

4

Dilemma and What to Do About It: Is the Problem that Too Many Children Are

5

Not Being Adopted Out of Foster Care or that Too Many Children Are Entering

6

Foster Care?, 2 U. Pa. J. Con. L. 141 (1999); Parental Rights in Child Welfare

7

Cases in New York City Family Courts, 40 Colum. J.L. & Soc. Probs. 507 (2007);

8

“When Should Courts Be Empowered to Make Child-Rearing Decisions?”, in A

9

Handbook of Divorce and Custody: Forensic, Developmental and Clinical

10

Perspectives (Linda Gunsberg & Paul Hymowitz eds., 2005); “Child Welfare

11

Policy and Practice in the United States 1950–2000,” in Cross-Currents: Family

12

Law in the United States and England (Sanford N. Katz, John Eekelaar & Mavis

13

Maclean eds., 2000); “Termination of Parental Rights,” in The Praeger Handbook

14

of Adoption (Vern L. Bullough & Kathy Shepherd Stolley eds., 2006); and

15

Symposium, The Rights of Parents with Children in Foster Care: Removals

16

Arising from Economic Hardship and Predictive Power of Race, 6 N.Y. City L.

17

Rev. 61 (2000).

18

9.

I currently serve as an Advisor to the American Law Institute’s

19

Restatement of the Law, Children and the Law project and as a member of the

20

Juvenile Justice Subcommittee for the American Bar Association Section on

21

Criminal Justice. I am the Founding Organizer for the National Alliance for Parent

22

Representation of the American Bar Association.

23

10.

As a practitioner representing parents and children involved in

24

the child welfare system and as Co-Director and professor of clinical law of the

25

Family Defense Clinic, I have spent decades studying the norms that U.S. family

26

law applies to the recognition of parent-child relationships and the protection of

27

parental rights.

EXHIBIT 17, Page 28
18cv0428

HIGH LEGAL STANDARD FOR SEPARATING FAMILIES

1
2

11.

As a threshold matter, U.S. family law strictly limits the

3

circumstances in which state officials may remove children from the custody of the

4

adults raising them. New York law well illustrates the organizing principles of

5

child welfare law: “[P]arents are entitled to bring up their own children unless the

6

best interests of the child would be thereby endangered . . . [T]he state’s first

7

obligation is to help the family with services to prevent its break-up or to reunite it

8

if the child has already left home.” N.Y. Soc. Serv. Law § 384-B(1)(a)(ii–iii)

9

(2015) (statement of legislative findings and intent for New York’s termination of

10

parental rights statute).

11

12.

Absent indications of maltreatment or wrongful custody,

12

American law forbids government officials from removing children from the

13

custody of the adults raising them.1 No jurisdiction in the United States recognizes

14

a cause of action that permits the State to remove a child from a guardian solely on

15

the grounds that they are not legally related.

16

13.

In this action, the Government appears to contend that it was in

17

the best of interests of asylum-seeking children to separate them from the adult

18

with whom they arrived in the United States, who is also seeking asylum, “until

19

parentage has been established to [the Office of Refugee Resettlement’s]
See, e.g., U.S. Dep’t of Health & Human Servs. [hereinafter HHS], Admin. for
Children & Families, Child Welfare Information Gateway, Determining the Best
Interests of the Child 2 (2016), https://www.childwelfare.gov/pubPDFs/
best_interest.pdf (identifying “[t]he importance of family integrity and preference
for avoiding removal of the child from his/her home” as a principle guiding best
interest determinations for children in 28 states); id. at 1 (“All States . . . have
statutes requiring that the child’s best interests be considered whenever specified
types of decisions are made regarding a child’s custody, placement, or other
critical life issues.”); see also HHS, Admin. for Children & Families, Reunifying
Families, https://www.childwelfare.gov/topics/permanency/reunification (“When
children must be removed from their families to ensure their safety, the first goal is
to reunite them with their families as soon as possible.”) (last visited Mar. 16,
2018).
1

EXHIBIT 17, Page 29
18cv0428

1

satisfaction.”2 The Government suggests that prolonged separation of these adults

2

and children is justified by a hypothetical risk of smuggling or trafficking.3 This

3

suggestion stands diametrically opposed to U.S. family law jurisprudence.

4

14.

Under U.S. family law, the State may separate a child from his

5

or her parents or legal guardians only when the State has satisfied its burden to

6

show that the child is at imminent risk of serious harm or that the child is illegally

7

in someone’s custody. It violates fundamental tenets of U.S. law to place the

8

burden on parents or guardians to demonstrate that they are fit or that they have

9

lawful custody of children.

10

U.S. law involving the custody of children is based on the

15.

11

principle of First Do No Harm. Removing children from the custody of their

12

parents and caregivers is a deeply dangerous action that should only be undertaken

13

when necessary to protect children from greater harm, that is, when leaving them

14

with their caregivers would subject them to imminent risk of harm. Even a short

15

removal from a child’s family can have devastating effects on the child. See Vivek

16

S. Sankaran & Christopher Church, Easy Come Easy Go: The Plight of Children

17

Who Spend Less than Thirty Days in Foster Care, 19 U. Pa. J.L. & Soc. Change

18

207, 210–13 (2017).

19

16.

For this reason, federal law requires that states make reasonable

20

efforts to prevent the need for removal before placing children in foster care. 42

21

U.S.C. § 671(a)(15)(B) (requiring that states make such efforts as a precondition to

22

federal reimbursement for the cost of foster care with very limited exceptions).

23

Accordingly, whenever a child is removed from his or her home, many states, such

24

as New York, require that there be a prompt judicial hearing at which the court

25

must find both that reasonable efforts to prevent the placement were attempted and

26

that removal is necessary to avoid imminent risk to the child’s life or health. See

2
3

See Response at 2.
See Julissa Portales Banzon’s Decl. in Supp. of the Response (ECF No. 28) ¶ 10.
EXHIBIT 17, Page 30
18cv0428

1

Nicholson v. Scoppetta, 820 N.E.2d 840, 849–52 (N.Y. 2004). Children are at risk

2

of suffering great emotional harm when they are removed from their loved ones.

3

And children who have traveled from afar and made their way to this country to

4

seek asylum are especially at risk of suffering irreversible psychological harm

5

when wrested from the custody of the parent or caregiver with whom they traveled

6

to the United States.

7

17.

Although federal officials have a legitimate interest in

8

protecting children from circumstances in which they have been kidnapped or

9

wrongfully removed from their families, it violates fundamental principles of child

10

welfare to remove children based merely on an unproven suspicion that they do not

11

belong to the adults in their care. Such a removal exposes the child to certain harm

12

in order to protect the child from potential harm he or she may never have

13

experienced. This practice turns child welfare best practices on their head. It

14

amounts to First Do Harm.
METHODS OF DETERMINING FAMILY RELATIONSHIPS

15
16

18.

Courts often accept an adult’s representation that he or she is

17

the child’s parent. In addition, courts in many states credit a mother’s testimony

18

about the paternity of her child—even when the father’s name is not reflected on

19

the child’s birth certificate.

20

19.

Where a State has grounds for deeming such representations

21

insufficient, the State has numerous other techniques to establish the parent-child

22

relationship. One such technique is to conduct separate interviews of the parent

23

and the child to allow them to speak independently. This allows an interviewer to

24

confirm that the parent and child can separately respond to questions with

25

information verifying a common family narrative.4

Another technique is to

4

Notably, ORR already credits information provided by unaccompanied minors in
order to find family members who can serve as sponsors. HHS, ORR, ORR
Guide: Children Entering the United States Unaccompanied § 2.2.1 (Apr. 11,
EXHIBIT 17, Page 31
18cv0428

1

observe the behaviors of the parent and child toward each other, which can confirm

2

the claimed familial relationship. This relationship is often apparent when the

3

child or parent acts in a way that suggests they are emotionally bonded to each

4

other.

5

20.

If reasonable suspicions about a familial relationship remain

6

even after use of the above techniques, DNA testing is available to establish the

7

validity of a genetic parent-child relationship. Buccal (cheek) swabs to obtain

8

samples from both the parent and child are commonly used to determine paternity,5

9

and are quick,6 easy,7 and inexpensive.8 Notably, the U.S. Department of State

10

Foreign Affairs Manual identifies these cheek swabs as the “preferred collection

11

method for immigration cases” where there are reasons for doubting the validity of

12

parental relationships.9 And DHS has estimated that the processing time takes as

2016), https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-2#2.2.1.
5
See, e.g., Flomo v. Bridgestone Ams. Holding, Inc., No. 1:06-cv-000627-WTLJMS, 2009 WL 4728021, at *3 (S.D. Ind. Dec. 2, 2009) (ordering minor plaintiff to
submit to cheek swab in order to determine paternity for claim under Alien Tort
Statute); see also 1 Linda D. Elrod, Kansas Law and Practice, Family Law § 7:12
(2017) (recognizing buccal swab as method for DNA testing); Laura Gahn,
Genetic Marker Testing, in 1 Paternity and the Law of Parentage in Massachusetts
§ 5.2.2 (2d ed. 2009) (same); 15 Rachel M. Kane, Summary of Pennsylvania
Jurisprudence Family Law § 8:27 (2d ed. 2018) (same).
6
LabCorp
DNA
Identity,
DNA
Testing
FAQS,
https://www.labcorpdna.com/understanding-your-results/dna-testing-faqs
(identifying standard processing time of paternity tests, including buccal swabs as
“3–5 business days once all samples are received in our DNA testing laboratory”);
7
Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: A
Search for Definitions and Policy, 31 Fam. L.Q. 613, 647 (1998) (“DNA testing
using a buccal swab is about as easy as it gets.”).
8
Vanessa S. Browne-Barbour, “Mama’s Baby, Papa’s Maybe”: Disestablishment
of Paternity, 48 Akron L. Rev. 263, 303 (2015) (describing buccal swabs as a
“relatively inexpensive means of establishing paternity”).
9
See 9 U.S. Dep’t of State, Foreign Affairs Manual § 601.11 (updated April 13,
2017).
EXHIBIT 17, Page 32
18cv0428

1

little as eight to ten hours, excluding transportation time.10 With the use of a Rapid

2

DNA System, that time may be reduced to fewer than two hours.11 Pursuant to the

3

Rapid DNA Act of 2017, the Federal Bureau of Investigation is in the process of

4

incorporating Rapid DNA in the collection of reference samples.12
CONCLUSIONS

5
6

21.

The Government’s apparent policy of separating asylum-

7

seeking children from their purported asylum-seeking parents is flagrantly at odds

8

with long-standing U.S. family law principles that forbid government officials

9

from separating children from their parents or caregivers except to prevent a

10

greater imminent risk of harm by keeping children as they found them.

11

22.

When appropriate and necessary to verify the legitimacy of a

12

parent-child relationship, the Government has numerous readily available, quick,

13

and inexpensive techniques at its disposal. None of these techniques require the

14

prolonged separation of the parent or guardian and the child, which has been

15

uniformly recognized to be extraordinarily traumatic for everyone involved.

16
17

23.

I reserve the right to make additional observations about the

adequacy of the Government’s policy.
10

DHS, Privacy Impact Assessment for the Rapid DNA System 2 (Feb. 8, 2013),
https://www.dhs.gov/sites/default/files/publications/privacy/PIAs/privacy-piarapiddna-20130208.pdf [hereinafter Rapid DNA System Assessment]. In the case
of Ms. L, the Government conducted DNA testing and confirmed to the Court that
Ms. L is the biological mother of S.S. only five days after S.S.’s DNA was
collected. See Response at 3 (“S.S.’s appointment to collect DNA (by swabbing)
was scheduled for today, March 7, 2018.”); Defs.’ Notice of DNA Results at 2
(ECF No. 44) (“[M]aternity has been established to the satisfaction of the Office of
Refugee Resettlement.”). No explanation was given for why this did not happen
four months earlier.
11
See DHS, Rapid DNA System Assessment, supra note 10, at 2; Erin R. Steward,
Discussion and Evaluation: The Legality and Use of Rapid DNA Technologies, 84
UMKC L. Rev. 1133, 1134 (2016).
12
See Rapid DNA Act, Pub. L. No. 115-50, 131 Stat. 1001 (2017); FBI, Rapid
DNA, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/rapid-dna
(last visited March 16, 2018).
EXHIBIT 17, Page 33
18cv0428

EXHIBIT 17, Page 34

EXHIBIT 18

EXHIBIT 18, Page 35
18cv0428

1
2
3
4
5
6
7
8
9

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 Petitioners-Plaintiffs
Additional counsel on next page

*Admitted Pro Hac Vice

10
11

Ms. L. et. al,

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 18-cv-00428-DMS-MDD

12
13 v.

Petitioners-Plaintiffs,

14 U.S. Immigration and Customs Enforcement

(“ICE”); U.S. Department of Homeland Security

15 (“DHS”); U.S. Customs and Border Protection

(“CBP”); U.S. Citizenship and Immigration

16 Services (“USCIS”); U.S. Department of Health

and Human Services (“HHS”); Office of

DECLARATION OF JESSICA
JONES

17 Refugee Resettlement (“ORR”); Thomas

Homan, Acting Director of ICE; Greg

18 Archambeault, San Diego Field Office Director,

ICE; Joseph Greene, San Diego Assistant Field

19 Office Director, ICE; Adrian P. Macias, El Paso

Field Director, ICE; Frances M. Jackson, El Paso

20 Assistant Field Office Director, ICE; Kirstjen

Nielsen, Secretary of DHS; Jefferson Beauregard

21 Sessions III, Attorney General of the United

States; L. Francis Cissna, Director of USCIS;

22 Kevin K. McAleenan, Acting Commissioner of
23 CBP; Pete Flores, San Diego Field Director,

CBP; Hector A. Mancha Jr., El Paso Field
24 Director, CBP; Alex Azar, Secretary of the
Department of Health and Human Services;
25 Scott Lloyd, Director of the Office of Refugee
Resettlement,
26
27

Respondents-Defendants.

28

EXHIBIT 18, Page 36
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: [phone]
F: [phone]
[e-mail]

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

EXHIBIT 18, Page 37
18cv0428

1
2

I, Jessica Jones, 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

3
4
5

true and correct:
1.

I am an attorney licensed to practice law in the state of New York, where

6
7
8
9

I am a member of the bar in good standing. I graduated from the Beasley School of
Law, Temple University in 2011. I specialize in child welfare, human rights and
immigration law impacting children.

10
11
12
13

2.

I have worked on unaccompanied alien children’s issues close to eight

years. From July 1, 2014 until March 15, 2018, I have worked as a Policy Counsel for
the Lutheran Immigration and Refugee Service (LIRS). In my work, I have

14
15

developed expertise on ORR policies and LIRS’s programs for unaccompanied

16

children. I am familiar with LIRS family cases during the fiscal years of 2014 through

17
18

2018 in LIRS's Transitional Foster Care Programs for unaccompanied children. As

19

such, I prepared this affidavit to account the experiences of our Children's Services

20

Program and implementing partners.

21
22
23
24

3.

LIRS is a service provider for the Department of Health and Human

Services’ Office of Refugee Resettlement (ORR). LIRS is the only ORR service
provider that provides the full spectrum of services to unaccompanied alien children

25
26

(UACs): short-term foster care, home studies, post-release case management, long-

27

term foster care, unaccompanied refugee minor foster care, and safe release sites

28

EXHIBIT 18, Page 38
18cv0428

1
2

where ORR sponsors can get background checks completed and receive assistance
with family reunification procedures.

3
4
5

4.

LIRS works with only a very small fraction of the children for whom

ORR provides transitional care and custody. While ORR places most children in large

6
7
8
9

shelters, LIRS is one of the partners that serves the much smaller segment of
unaccompanied children placed in ORR transitional foster care. Many of the children
placed in ORR transitional care are children of “tender age,” usually 10 years old or

10
11
12
13

younger.
5.

LIRS has noticed a dramatic increase in the number of cases of

immigrant children separated from their parents. During the five month period from

14
15

May 2017 through September 2017, LIRS documented 22 cases of children separated

16

from parents, with the majority occurring in the months of August and September.

17
18
19
20

6.

The ages of the children separated from their parents ranged from 2 to 15,

with an average child age of 8
7.

This trend continued in fiscal year 2018. During the first five months—

21
22
23
24

October 2017 through February 2018—we saw 20 parent-child family separations.
8.

This represents only a small number of the family separations that

occurred during this period, since LIRS serves a relatively small percentage of these

25
26

children. However, I have spoken to providers who serve other unaccompanied

27
28

EXHIBIT 18, Page 39
18cv0428

1
2

children and they have noted a similar dramatic increase in family separations during
the last year.

3
4
5

9.

In the separation cases we have seen over the last year, the government

has not told LIRS about any concerns regarding the veracity of the parent-child

6
7
8
9

relationship.
10.

Many of the parent-child separation cases LIRS has seen are due to

Customs and Border Patrol (CBP) referring a parent for criminal prosecution for the

10
11
12
13

misdemeanor of illegal entry, without considering humanitarian factors that warrant
keeping a family unit together, and without taking into account whether the family are
bona fide asylum-seekers. Despite LIRS’s conversations with CBP about these

14
15

concerns, it appears that CBP continues to refer and transfer custody of asylum-

16

seekers to the U.S. Marshall Service (USMS) for criminal prosecution before first

17
18

ascertaining whether the individual or family has been determined by an asylum

19

officer to have a credible fear or reasonable fear of persecution—even though the

20

result is that the child gets transferred to ORR custody.

21
22
23
24

11.

Moreover, ICE does not attempt to reunify children with their parents

when the reasons for separation no longer exist. If the separation was due to the
parent being placed in U.S. Marshall’s custody for purpose of criminal prosecution—

25
26

usually for the misdemeanor of unlawful entry—these prosecutions are often resolved

27

within several weeks, at which point the parent is returned to ICE custody. Yet,

28

EXHIBIT 18, Page 40
18cv0428

1
2

according to our child caseworkers, they are never informed when a parent is back in
immigration custody, even though at this point, the basis for separation no longer

3
4

exists. Nor are our caseworkers aware of any efforts to try to reunify children with

5

parents who have been returned to ICE custody.

6
7
8
9

12.

Separation of minor children from their parents can cause significant

trauma, hinder psycho-social development, and cause physical harm.
13.

After separating the parent and the child—often detaining the children

10
11
12
13

thousands of miles away—caseworkers often find it challenging to locate parents in
ICE custody, schedule calls between children and parents in ICE custody, and obtain
other information from parents that will assist in providing care and support to their

14
15
16

children.
14.

Because the parent is often the person who has best knowledge of any

17
18

immigration claims the child can bring, the separation of parent and child often

19

hampers the ability of caseworkers and attorneys to advocate and pursue immigration

20

claims on behalf of the children.

21
22
23
24

15.

Furthermore, separation of the child from the parent puts enormous

pressure on parents to give up their asylum cases, because of the emotional distress
and despair the separation engenders. In many of the family separation cases LIRS

25
26

has seen recently, parents with a genuine fear of persecution in their home countries

27

nonetheless choose not to seek asylum because the parents would face prolonged

28

EXHIBIT 18, Page 41
18cv0428

1
2

family separation away from their children. In LIRS’s experience, for parents this is
often a very difficult choice to make, as the family may have fled due to real threats of

3
4

persecution. Yet for a parent and child, a prolonged family separation lasting many

5

months can cause serious emotional and physical distress and harm.

6
7
8
9

16.

Unfortunately, in those situations where a parent decides to give up their

claims and agree to removal, it usually takes at least several months after a parent’s
deportation before the child can be processed through removal proceedings and

10
11
12
13

allowed to leave the country. During this time the child remains in ORR custody,
separated from their parent, even though the parent has been returned to their home
country and wants to be reunited with their child.

14
15
16

17.

LIRS program social workers have expressed concern that ICE does not

appreciate the urgency of trying to expedite removal proceedings in these children’s

17
18
19
20

cases so that they can be more promptly reunified with their parents.
18.

Of particular concern are children of tender age, for whom placement in

foster care for several months represents a significant portion of their life and can

21
22
23
24

create strong attachments. When these attachments need to be broken, the children
experience additional trauma.
19.

One example of the type of case LIRS is encountering involves a parent

25
26

who arrived at the border with a U.S. citizen child and an undocumented child. Even

27

though the parent was seeking asylum, and even though this was the parent’s first time

28

EXHIBIT 18, Page 42
18cv0428

1
2

coming to the U.S., upon apprehension by Border Patrol the parent’s children were
taken away. The parent’s U.S. citizen child was transferred to the state child protective

3
4

services agency and the undocumented child was transferred to ORR custody. As a

5

result, the parent was forced to face the possibility not only of the noncitizen child

6
7
8
9

being detained alone, in ORR custody, but also a possible child welfare proceeding for
the U.S. citizen child. The parent was told that the parent would have to stay in ICE
detention for over 6 months if the parent wished to pursue asylum. The parent

10
11
12
13

ultimately decided not to pursue an asylum claim because it would have required
prolonged separation from the two children. The parent was ultimately deported with
the USC child. However, because ICE was unable to expedite removal proceedings

14
15

for the noncitizen child, this child remained in ORR custody after the parent was

16

deported.

17
18
19

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.

20
21
22
23
24
25
26
27
28

EXHIBIT 18, Page 43
18cv0428

Executed in Washington, DC on March 15, 2018.

9

EXHIBIT 18, Page 44
18cv0428

EXHIBIT 19

EXHIBIT 19, Page 45
18cv0428

Petitioners-Plaintiffs,

EXHIBIT 19, Page 46
18cv0428

EXHIBIT 19, Page 47
18cv0428

EXHIBIT 19, Page 48
18cv0428

EXHIBIT 19, Page 49
18cv0428

EXHIBIT 19, Page 50
18cv0428

EXHIBIT 19, Page 51
18cv0428

EXHIBIT 20

EXHIBIT 20, Page 52
18cv0428

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: [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
*Admitted Pro Hac Vice
Additional counsel on next page
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

11
12

Ms. L., et al.,

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 DECLARATION OF
(“DHS”); U.S. Customs and Border Protection
DEBORAH ANKER
(“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

Respondents-Defendants.

28

EXHIBIT 20, Page 53
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: [phone]
F: [phone]
[e-mail]

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

EXHIBIT 20, Page 54
18cv0428

I, Deborah Anker, 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 am a Clinical Professor of Law at Harvard Law School and Founder and

Director of the Harvard Law School Immigration and Refugee Clinical Program. In
that capacity, I have supervisory responsibility for a staff of ten persons; I both
supervise students working on asylum cases and represent persons seeking asylum
in the United States. I have taught immigration, refugee and asylum law to students
at Harvard Law School for over thirty years. I am the author of the well-known
treatise “Law of Asylum in the United States,” and I have published various articles
and amicus briefs related to U.S. and international refugee law. I keep regularly
apprised of practices and developments in the field of asylum, refugee law and
immigration law generally.
2.

Refugees seeking asylum protection frequently do not have regular travel

documentation, birth certificates or other documentation because they leave quickly
and under emergent circumstances not leaving them time to gather proper
documentation. Sometimes they have been in hiding before they leave and it is too
dangerous for them to return to their homes to obtain such documentation. In some
circumstances identifying documentation is stolen from them on their way to the
United States.

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3.

After they arrive here, refugees will sometimes contact family members or

friends in their home countries to have identity documents and documents needed
as evidence in their claims sent to them. However, this can be a difficult and slow
process, especially for refugees who are detained and unrepresented.
4.

Among commentators on refugee law it is almost axiomatic that refugees

often arrive in countries of asylum without documents.

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 Cambridge, Massachusetts on March 9, 2018.

DEBORAH ANKER

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