State of Washington et al v. United States of America et al

Filing 16

DECLARATION of Laura K. Clinton filed by Plaintiff State of Washington re #15 MOTION to Expedite Discovery and Regular Staus Conferences (Attachments: #1 Exhibit A-P)(Clinton, Laura)

Exhibit A

Exhibit B

Exhibit C

STATE OF NEW MEXICO
OFFICE OF THE ATTORNEY GENERAL

HECTOR H. BALDERAS
ATTORNEY GENERAL

June 19, 2018
The Honorable Jeff Sessions
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

The Honorable Kirstjen Nielsen
Secretary
U.S. Department of Homeland Security
3801 Nebraska Avenue, N.W.
Washington, D.C. 20528

Dear Attorney General Sessions and Secretary Nielsen:
The undersigned Attorneys General write to express our strong opposition to the Department of
Justice’s new “zero tolerance” policy of forcibly separating all families that cross the border
illegally, including those seeking asylum. The policy is not only inhumane, but it also raises serious
concerns regarding the violation of children’s rights, constitutional principles of due process and
equal protection, and the efforts of state law enforcement officials to stop crime. Because of these
concerns, we demand that the Department of Justice immediately cease these draconian practices.
On April 6, 2018, the Attorney General announced a new “zero tolerance” policy, calling for the
immediate criminal prosecution of all individuals who illegally enter the United States, including
those seeking asylum. Under this policy, adults who enter the United States are brought to federal
prisons, instead of immigrant detention centers, and their children are treated as “unaccompanied
minors” and forcibly placed into the care of the Department of Health and Human Services’ Office
of Refugee Resettlement.
As you are aware, the fundamental rights of children are expressed in international, federal, and
state bodies of law. Each of these laws is, at its core, designed to protect the best interests of
children. These laws are representative of the views of millions of Americans that the government,
in any process, should first and foremost seek to protect those interests. Almost universally, the
statutory mandates and the litany of cases interpreting them overwhelmingly express that a child’s
best interests are served by remaining with his or her family, absent a rigorous judicial inquiry
resulting in a finding that a parent is unfit or proof beyond a reasonable doubt that a crime has been
committed. Policies that separate a child from his or her parent absent that level of inquiry, would
not only be illegal under most state laws, but also may be contrary to the policy views of state
legislatures and their constituents across this country.

These views are complemented by numerous laws and judicial precedent that mandate and hold
that parents have a fundamental right to raise their children. This principle is affirmed in both state
and federal law, by both statute and judicial precedent. The notion that the government should
intrude into the rights of a parent to be with their child has historically been met with extremely
high levels of scrutiny. Thus, the deliberate separation of families for the express purpose of
furthering an immigration policy is contrary to our laws.
Not only is it highly concerning that current Department of Justice policies may be in contravention
of the express purpose of these legal mandates, but these practices directly interfere with the efforts
of our offices and other enforcement officials—locally, nationally, and internationally—to prevent
and prosecute crime. In most states, Attorneys General are responsible for enforcing laws that
include human trafficking, drug trafficking, and gang violence offenses. As you are keenly aware,
these issues are rarely local in context; rather, they require the efforts and collaboration of law
enforcement officials across both state and international borders to prevent the widespread and
syndicated perpetration of these crimes. These efforts rely on reporting and cooperation from
survivors of these crimes and victims of criminal organizations. The practice of mandatory family
separation is both inhumane and contrary to the efforts of the law enforcement and others who
dedicate their tireless efforts to stopping violent criminals.
Put simply, the deliberate separation of children and their parents who seek lawful asylum in
America is wrong. This practice is contrary to American values and must be stopped. We demand
that you immediately reverse these harmful policies, as it is in the best interests of the children and
families affected.

Sincerely,

Hector Balderas
Attorney General of New Mexico

Xavier Becerra
Attorney General of California

George Jepsen
Attorney General of Connecticut

Matthew P. Denn
Attorney General of Delaware

TELEPHONE: [phone] FAX: [phone] www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501

Karl Racine
Attorney General for the District of Columbia

Russell Suzuki
Attorney General of Hawaii

Lisa Madigan
Attorney General of Illinois

Thomas J. Miller
Attorney General of Iowa

Janet Mills
Attorney General of Maine

Brian Frosh
Attorney General of Maryland

Maura Healy
Attorney General of Massachusetts

Lori Swanson
Attorney General of Minnesota

Gurbir Grewal
Attorney General of New Jersey

Barbara D. Underwood
Attorney General of New York

TELEPHONE: [phone] FAX: [phone] www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501

Josh Stein
Attorney General of North Carolina

Ellen Rosenblum
Attorney General of Oregon

Josh Shapiro
Attorney General of Pennsylvania

Peter F. Kilmartin
Attorney General of Rhode Island

Thomas J. Donovan, Jr.
Attorney General of Vermont

Mark R. Herring
Attorney General of Virginia

Bob Ferguson
Attorney General of Washington

cc:

Honorable Mitch McConnell
Majority Leader, United States Senate
Honorable Paul Ryan
Speaker of the United States House of Representatives

TELEPHONE: [phone] FAX: [phone] www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501

Exhibit D

Produced by: ASPR GIS
Data sources: ESRI, ICE

Separated UAC Count By State

Map as of: 25Jun18 1630EDT

5
4

27
9

327
24

65

2

20 10

47
379

2

3
944
179
UACs Count by State
2 - 99
100 - 199

Numbers represent total of UACs referred to ACF
care from May 6 - June 20th based on unreconciled data.

200 - 944

Exhibit E

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 1 of 8 Page ID #:108

United States District Court
Central District of California

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 2 of 8 Page ID #:109

Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 3 of 8 Page ID #:110

Id.

Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.

Id.
Id.
Id.
Id.

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 4 of 8 Page ID #:111

Id.

Id.
Id.
Id.
Id.

Id.
Id.
Id.
Id.
Id.

Id.

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 5 of 8 Page ID #:112

Id.
Id.

Id.

Id.

Stuhlbarg Int’l Sales Co. v.
John D. Brush & Co.

Am. Trucking Ass’ns, Inc. v. City of Los Angeles
Winter v. Nat. Res. Def. Council, Inc

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 6 of 8 Page ID #:113

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 7 of 8 Page ID #:114

Case 5:18-cv-01317-ODW-MAA Document 10 Filed 06/21/18 Page 8 of 8 Page ID #:115

Exhibit F

Exhibit G

Exhibit H

Exhibit I

Exhibit J

Exhibit K

Exhibit L

Exhibit M

Exhibit N

Exhibit O

Exhibit P

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CHAD A. READLER
Acting Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney General
Civil Division
WILLIAM C. PEACHEY
Director
COLIN KISOR
Deputy Director
SARAH B. FABIAN
Senior Litigation Counsel
U.S. Department of Justice
Office of Immigration Litigation
District Court Section
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: [phone]
Fax: [phone]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JENNY LISETTE FLORES; et al.,
Plaintiffs,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the
United States; et al.,
Defendants.

) Case No. CV 85-4544-DMG
)
) DEFENDANTS’ NOTICE OF
) COMPLIANCE
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The Government’s June 21, 2018, ex parte application explained that the

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Flores Agreement—as interpreted by this Court and the Ninth Circuit—put the

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Government in the difficult position of having to separate families if it decides it
should detain parents for immigration purposes. Defendants wish to inform the
Court that, following the filing of our application to this Court, a federal district

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court in the Ninth Circuit held that such separation likely violates substantive due

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process under the Fifth Amendment. Ms. L v. U.S. Immigration and Customs

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Enforcement, No. 18-428 (S.D. Cal. June 26, 2018) (attached as exhibit). The Ms.
L court certified a class and entered a class-wide preliminary injunction requiring
reunification—both for parents released into the interior of the United States and

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for parents in DHS custody— and barring future separations for families in DHS

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custody.

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Defendants are submitting this notice of compliance to explain how the
government is applying the Flores Agreement in light of this injunction. To
comply with the Ms. L injunction barring parents in DHS custody from being
separated from their children, the Government will not separate families but detain
families together during the pendency of immigration proceedings when they are

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apprehended at or between ports of entry. As explained below, we believe that the

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Flores Agreement permits the Government to detain families together to comply

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with the nationwide order in Ms. L. We nevertheless continue to believe that an
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amendment of the Flores Agreement is appropriate to address this issue. Until that

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amendment, this submission sets out the Government’s interpretation and

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application of the Agreement in light of Ms. L.
A. There are many legitimate justifications for detaining arriving aliens
under the immigration laws, including well-established rules that allow arriving

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aliens at the border to be detained pending a determination of whether they may

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legally be admitted to the United States. Such detention, which Congress has made

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mandatory in many circumstances under 8 U.S.C. § 1225(b), is essential to
protecting our southwest border, discouraging families that are not entitled to
remain in this country from making the dangerous journey to the border, and

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returning families promptly when they are not entitled to relief in this country. See

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Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018); cf. Demore v. Kim, 538 U.S.

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510, 526 (2003) (discussing the Supreme Court’s “longstanding view that the

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Government may constitutionally detain deportable aliens during the limited period

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necessary for their removal proceedings”).
We have explained over a period of years that one impact of the Flores
requirements, if applied to minors that come into DHS custody accompanied by

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their parents, would be the separation of parents from their children. In construing

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the Flores Agreement, over the government’s objection, to apply to children taken

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into custody with their families, the Ninth Circuit understood that the separation of
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parents from their children was a direct consequence of its holding. Flores v.

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Lynch, 828 F.3d 898, 908-09 (9th Cir. 2016). But the Ninth Circuit also made

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clear that neither the Flores Agreement nor court rulings applying it impose any
legal barrier on the critical authority of DHS to detain adults who come into
immigration custody at the border with their children. Flores, 828 F.3d at 908-09.

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The Ms. L court reached the same conclusion in considering the situation of

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the separation of accompanied children from their parents, this time from the point

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of view of the parents, who were not parties to the Flores case or the Settlement
Agreement. The Ms. L court issued class-wide relief requiring that, in most
circumstances, parents be kept with their children during the pendency of

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immigration proceedings. Notably, like the Ninth Circuit, the court in Ms. L

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recognized the authority of DHS to detain parents in immigration custody pending

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resolution of their immigration cases. As the court emphasized, even in light of the

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court’s injunction requiring families to be kept together and reunified, the

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“Government would remain free to enforce its criminal and immigration laws, and
to exercise its discretion in matters of release and detention consistent with law.”
Order at 20; see also id. at 3 (“Order does not implicate the Government’s

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discretionary authority to enforce immigration laws . . . including its decision to

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release or detain class members.”). Thus, while the Government must keep

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families together when it chooses to exercise its discretion to detain or release a
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parent under the INA, the court cited the Flores in explaining that the Government

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otherwise remains “free” to exercise “discretion in matters of release and

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detention.” Id at 20 (citing Flores); see id. at 7 (for “children placed in federal
custody, there are two options,” the first option is separating the family and placing
the child alone in ORR custody and “the second option is family detention”).
B. Reading the Flores Agreement together with the subsequent nationwide
order in Ms. L, we understand the courts to have provided that minors who are

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apprehended with families may not be separated from their parents where it is
determined that continued detention is appropriate for the parent. The Flores
Agreement allows this result for two reasons.
First, the Agreement’s express terms accommodate court orders like the one
recently issued in Ms. L. Paragraph 12A of the Flores Agreement provides for the

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release of minors to a parent (or others) when possible under Paragraph 14 or,

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alternatively, transfer to an appropriate facility with a licensed program under

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Paragraph 19. See Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016) (“Settlement
creates a presumption in favor of releasing minors and requires placement of those
not released in licensed, non-secure facilities that meet certain standards”). But

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these provisions include exceptions to releasing or transferring minors to

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accommodate a ruling like that in Ms. L requiring families to be kept together, and

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those exceptions permit family detention in these circumstances.
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Release provision. In Paragraph 14, the Flores Agreement specifies that a
minor should be “release[d] from its custody without unnecessary delay” to a
parent or other relative. Flores Agreement ¶ 14 (emphasis added). The court’s
order in Ms. L, which requires that the minor be kept with the parent, makes delay
necessary in these circumstances. The minor cannot be released under Paragraph

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14 without separating him or her from their parent, as such a separation would

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violate the injunction issued in Ms. L. See Ms. L Order at 22 (DHS is “enjoined

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from detaining Class Members in DHS custody without and apart from their minor
children”). Under those circumstances, the release of the minor from custody must
be “delay[ed]” pursuant to the Agreement during the period the parent is detained

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by DHS. Flores Agreement ¶ 14. Indeed, the court’s order in Ms. L envisions that

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a parent would be “reunited with the child in DHS custody” and that a child would

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be released only “[i]f Defendants choose to release Class Members [i.e., parents]

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from DHS custody” or if a parent consents. Order at 23 (emphasis added). This

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application of the Flores Agreement is also consistent with another aspect of
Paragraph 14 of the Agreement – which sets placing the minor with “a parent” as
the first “order of preference.” Flores Agreement ¶ 14; id. ¶ 18 (requiring

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“continuous efforts . . . toward family reunification and . . . release”) (emphasis

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added); see Flores, 828 F.3d at 903 (“[t]he settlement creates a presumption in

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favor of release and favors family reunification”) (emphasis added).
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Transfer provision. The Flores Agreement also permits transfer of a child to

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a licensed program under Paragraph 19. See Flores Agreement ¶ 12A. Under
Paragraph 12A, during an influx DHS is required to transfer a minor for placement
in a licensed program “as expeditiously as possible.” Id. ¶ 12A.3. But the
obligation to transfer applies “except . . . as otherwise required by any court decree

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or court-approved settlement.” Id. ¶ 12A.2. Here, the court decree in Ms. L

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prohibits the transfer of the minor to a licensed program, because such a transfer

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would separate the child from his or her parent. Ms. L Order at 22. A transfer
therefore cannot occur consistent with that court decree. 1

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Second, both Ms. L and Flores expressly envision that adults who arrive at

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the United States with children are properly subject to detention – a critical aspect

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of border enforcement. Given that express conclusion in each decision, it would be

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remarkable to read the orders together as mandating the opposite conclusion – that

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detention may never occur. Doing so would undermine the express holdings in

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both cases. Ms. L, for its part, held that DHS would retain the same authority to
detain the parent as it had before – it simply required that such detention be of the

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The issue regarding how the Flores Agreement licensing provisions apply to
family detention centers is the subject of ongoing litigation. But to the extent that
family detention centers are treated as licensed consistent with the Flores
Agreement, a transfer under this provision could occur consistent with Ms. L. We
have also asked this Court to modify the Agreement to permit the transfer of
families together to family residential centers without requiring a state license.
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family as a unit. See Ms. L Order at 3 (“Order does not implicate the

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Government’s discretionary authority to enforce immigration laws . . . including its

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decision to release or detain class members”); id. at 22 (DHS may “choose to
release” class members).
Likewise, the Ninth Circuit ruling in Flores held that the “settlement does

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not require the government to release parents.” Flores, 828 F.3d at 908; see also

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Bunikyte v. Chretoff, 2007 WL 1074070, at *16 (W.D. Tex. 2007) (rejecting

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argument that Flores Agreement required release of both minors and parents). As
the Ninth Circuit explained, providing rights to minors under the agreement “does
not mean that the government must also make a parent available” by releasing the

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parent with the child. Flores, 828 F.3d at 908; id. at 909 (“parents were not

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plaintiffs in the Flores action, nor are they members of the certified class,” and the

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settlement “therefore provides no affirmative releases rights for parents”). Because

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the Flores Agreement does not require the release of parents, and Ms. L requires

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DHS to keep parents and children together when the parents are in detention, the
rulings work together to permit detention of parents with their minor children with
whom they are apprehended.
C. No other aspect of the Flores Agreement or Ms. L require the United
States to release all individuals held in border-related detention when they arrive at
the border with children. Instead, other aspects of the rulings lead to the opposite
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conclusion. The Ms. L ruling addresses reunification of children with their parents,

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and specifically requires reunification “when the parent is returned to immigration

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custody” after a release from criminal custody. Order at 10; see id. at 11 (court
order provides for “reunification during intervening . . . ICE detention prior to
actual removal, which can take months”). But this aspect of the Ms. L ruling

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would make little sense if that reunification would necessitate an immediate release

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of the parents from immigration custody under the Flores Agreement.

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The Ms. L decree also provides that the parent may consent to the release of
the child without the parent. Order at 23 (parent may “affirmatively, knowingly,
and voluntarily decline[] to be reunited with the child in DHS custody”). This

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authority permits the continued operation of the provisions of the Flores

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Agreement governing release of the child – albeit with the accompanying parent’s

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consent before they go into effect. Relying on a parent’s consent in these

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circumstances where the family is together makes sense, particularly because

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plaintiffs in this case have always agreed that detention of the family together is
permissible if the parent consents. See Flores, Transcript at 37-38 (April 24,
2015) (in response to question whether the “agreement allows[s] for an

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accommodation to . . . a parent who wishes to remain in the [family residential]

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facility,” “the plaintiffs’ positions is . . . a class member is entitled to waive those

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rights” and that waiver may “parents speak for children all the time”) (relevant
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pages attached as exhibit); see also

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https://www.npr.org/2018/06/22/622678753/the-history-of-the-flores-settlement-

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and-its-effects-on-immigration (June 22, 2018) (last visited June 29, 2018)
(counsel for plaintiffs explaining that “choice” to remain in family detention “is
not something the Flores settlement itself addresses or prevents”). That is a

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preference expressed by other plaintiffs who have challenged family separation.2

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This aspect of the Ms. L order – allowing release of the child with the consent of

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the parent – would make little sense if the Government was under an affirmative
obligation to release the entire family together.

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D. Accordingly, for the reasons explained, the Flores Agreement permits

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the Government to detain families together given the nationwide order in Ms. L

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that bars the separation of families in DHS custody. To comply with the Ms. L

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injunction, the government will not separate families but detain families together

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during the pendency of immigration proceedings when they are apprehended at or

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between ports of entry and therefore subject to the Ms. L injunction.

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See Mejia-Mejia v. ICE, No. 18-1445, Complaint ¶ 4 (D.D.C. filed June 19,
2018) (“If, however, the government feels compelled to continue detaining these
parents and young children, it should at a minimum detain them together in one of
its immigration family detention centers”); Padilla v. ICE, NO. 18-928 (W.D.
Wash), Complaint ¶ 12 (“If, however, the government insists on continuing to
detain these parents and children, it must at a minimum detain them together in one
of its immigration family detention centers.”).
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DATED:

June 29, 2018

Respectfully submitted,

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CHAD A. READLER
Acting Assistant Attorney General
/s/ August E. Flentje
AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney
General
Civil Division
WILLIAM C. PEACHEY
Director
COLIN KISOR
Deputy Director
SARAH B. FABIAN
Senior Litigation Counsel
U.S. Department of Justice
Office of Immigration Litigation
District Court Section
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: [phone]
Fax: [phone]

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Attorneys for Defendants

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CERTIFICATE OF SERVICE

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I hereby certify that on June 29, 2018, I served the foregoing pleading on all

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counsel of record by means of the District Clerk’s CM/ECF electronic filing

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system.

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/s/ August E. Flentje
August E. Flentje
Attorney for Defendants

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,

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v.

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ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASSWIDE
PRELIMINARY INJUNCTION

U.S Immigration and Customs
Enforcement (“ICE”); et al.,

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Respondents-Defendants.

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Eleven weeks ago, Plaintiffs leveled the serious accusation that our Government was

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engaged in a widespread practice of separating migrant families, and placing minor

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children who were separated from their parents in government facilities for

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“unaccompanied minors.”

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indiscriminately, and separated even those families with small children and infants—many

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of whom were seeking asylum. Plaintiffs noted reports that the practice would become

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national policy. Recent events confirm these allegations. Extraordinary relief is requested,

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and is warranted under the circumstances.

According to Plaintiffs, the practice was applied

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On May 7, 2018, the Attorney General of the United States announced a “zero

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tolerance policy,” under which all adults entering the United States illegally would be

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subject to criminal prosecution, and if accompanied by a minor child, the child would be
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18cv0428 DMS (MDD)

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separated from the parent.1 Over the ensuing weeks, hundreds of migrant children were

2

separated from their parents, sparking international condemnation of the practice. Six days

3

ago on June 20, 2018, the President of the United States signed an Executive Order (“EO”)

4

to address the situation and to require preservation of the “family unit” by keeping migrant

5

families together during criminal and immigration proceedings to the extent permitted by

6

law, while also maintaining “rigorous[]” enforcement of immigration laws. See Executive

7

Order, Affording Congress an Opportunity to Address Family Separation § 1, 2018 WL

8

3046068 (June 20, 2018). The EO did not address reunification of the burgeoning

9

population of over 2,000 children separated from their parents. Public outrage remained

10

at a fever pitch. Three days ago on Saturday, June 23, 2018, the Department of Homeland

11

Security (“DHS”) issued a “Fact Sheet” outlining the government’s efforts to “ensure that

12

those adults who are subject to removal are reunited with their children for the purposes of

13

removal.”2

14

Plaintiffs assert the EO does not eliminate the need for the requested injunction, and

15

the Fact Sheet does not address the circumstances of this case. Defendants disagree with

16

those assertions, but there is no genuine dispute that the Government was not prepared to

17

accommodate the mass influx of separated children. Measures were not in place to provide

18

for communication between governmental agencies responsible for detaining parents and

19

those responsible for housing children, or to provide for ready communication between

20

separated parents and children. There was no reunification plan in place, and families have

21

been separated for months. Some parents were deported at separate times and from

22
23
24
25
26
27
28

1

See U.S. Att’y. Gen., Attorney General Sessions Delivers Remarks Discussing the
Immigration Enforcement Actions of the Trump Administration (May 7, 2018),
https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarksdiscussing-immigration-enforcement-actions.
2
See U.S. Dep’t of Homeland Sec., Fact Sheet: Federal Regulations Protecting the
Confidentiality
of
Asylum
Applicants
(June
23,
2018),
https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-familyreunification.
2
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different locations than their children. Migrant families that lawfully entered the United

2

States at a port of entry seeking asylum were separated. And families that were separated

3

due to entering the United States illegally between ports of entry have not been reunited

4

following the parent’s completion of criminal proceedings and return to immigration

5

detention.

6

This Court previously entered an order finding Plaintiffs had stated a legally

7

cognizable claim for violation of their substantive due process rights to family integrity

8

under the Fifth Amendment to the United States Constitution based on their allegations the

9

Government had separated Plaintiffs from their minor children while Plaintiffs were held

10

in immigration detention and without a showing that they were unfit parents or otherwise

11

presented a danger to their children. See Ms. L. v. U.S. Immigration & Customs Enf’t, 302

12

F. Supp. 3d 1149, 2018 WL 2725736, at *7-12 (S.D. Cal. June 6, 2018). A class action

13

has been certified to include similarly situated migrant parents. Plaintiffs now request

14

classwide injunctive relief to prohibit separation of class members from their children in

15

the future absent a finding the parent is unfit or presents a danger to the child, and to require

16

reunification of these families once the parent is returned to immigration custody unless

17

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

18

Plaintiffs have demonstrated a likelihood of success on the merits, irreparable harm,

19

and that the balance of equities and the public interest weigh in their favor, thus warranting

20

issuance of a preliminary injunction. This Order does not implicate the Government’s

21

discretionary authority to enforce immigration or other criminal laws, including its

22

decisions to release or detain class members. Rather, the Order addresses only the

23

circumstances under which the Government may separate class members from their

24

children, as well as the reunification of class members who are returned to immigration

25

custody upon completion of any criminal proceedings.

26

///

27

///

28

///
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I.

2

BACKGROUND

3

This case started with the filing of a Complaint by Ms. L., a Catholic citizen of the

4

Democratic Republic of the Congo fleeing persecution from her home country because of

5

her religious beliefs. The specific facts of Ms. L.’s case are set out in the Complaint and

6

this Court’s June 6, 2018 Order on Defendants’ motion to dismiss. See Ms. L., 2018 WL

7

2725736, at *1-3. In brief, Ms. L. and her then-six-year-old daughter S.S., lawfully

8

presented themselves at the San Ysidro Port of Entry seeking asylum based on religious

9

persecution. They were initially detained together, but after a few days S.S. was “forcibly

10

separated” from her mother. When S.S. was taken away from her mother, “she was

11

screaming and crying, pleading with guards not to take her away from her mother.” (Am.

12

Compl. ¶ 43.) Immigration officials claimed they had concerns whether Ms. L. was S.S.’s

13

mother, despite Ms. L.’s protestations to the contrary and S.S.’s behavior. So Ms. L. was

14

placed in immigration custody and scheduled for expedited removal, thus rendering S.S.

15

an “unaccompanied minor” under the Trafficking Victims Protection and Reauthorization

16

Act (“TVPRA”), Pub. L. No. 110-457 (Dec. 23, 2008), and subjecting her to the “care and

17

custody” of the Office of Refugee Resettlement (“ORR”).3 S.S. was placed in a facility in

18
19
20
21
22
23
24
25
26
27
28

The TVPRA provides that “the care and custody of all unaccompanied alien children,
including responsibility for their detention, where appropriate, shall be the responsibility
of” HHS and its sub-agency, ORR. 8 U.S.C. § 1232(b)(1). An “unaccompanied alien
child” (“UAC”) is a child under 18 years of age with no lawful immigration status in the
United States who has neither a parent nor legal guardian in the United States nor a parent
nor legal guardian in the United States “available” to care for them. 6 U.S.C § 279(g)(2).
According to the TVPRA, a UAC “may not be placed with a person or entity unless the
Secretary of Health and Human Services makes a determination that the proposed
custodian is capable of providing for the child’s physical and mental well-being. Such
determination shall, at a minimum, include verification of the custodian’s identity and
relationship to the child, if any, as well as an independent finding that the individual has
not engaged in any activity that would indicate a potential risk to the child.” 8 U.S.C. §
1232(c)(3)(A).
3

4
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Chicago over a thousand miles away from her mother.

2

determined Ms. L. had a credible fear of persecution and placed her in removal

3

proceedings, where she could pursue her asylum claim. During this period, Ms. L. was

4

able to speak with her daughter only “approximately 6 times by phone, never by video.”

5

(Am. Compl. ¶ 45.) Each time they spoke, S.S. “was crying and scared.” (Id. ¶ 43.) Ms.

6

L. was “terrified that she would never see her daughter again.” (Id. ¶ 45.) After the present

7

lawsuit was filed, Ms. L. was released from ICE detention into the community. The Court

8

ordered the Government to take a DNA saliva sample (or swab), which confirmed that Ms.

9

L. was the mother of S.S. Four days later, Ms. L. and S.S. were reunited after being

10

Immigration officials later

separated for nearly five months.

11

In an Amended Complaint filed on March 9, 2018, this case was expanded to include

12

another Plaintiff, Ms. C. She is a citizen of Brazil, and unlike Ms. L., she did not present

13

at a port of entry. Instead, she and her 14-year-old son J. crossed into the United States

14

“between ports of entry,” after which they were apprehended by U.S. Border Patrol. Ms.

15

C. explained to the agent that she and her son were seeking asylum, but the Government,

16

as was its right under federal law, charged Ms. C. with entering the country illegally and

17

placed her in criminal custody. This rendered J. an “unaccompanied minor” and he, like

18

S.S., was transferred to the custody of ORR, where he, too, was housed in a facility in

19

Chicago several hundred miles away from his mother. Ms. C. was thereafter convicted of

20

misdemeanor illegal entry and served 25 days in criminal custody. After completing that

21

sentence, Ms. C. was transferred to immigration detention for removal proceedings and

22

consideration of her asylum claim, as she too had passed a credible fear screening. Despite

23

being returned to immigration custody, Ms. C. was not reunited with J. During the five

24

months she was detained, Ms. C. did not see her son, and they spoke on the phone only “a

25

handful of times[.]” (Id. ¶ 58.) Ms. C. was “desperate” to be reunited with her son, worried

26

about him constantly and did not know when she would be able to see him. (Id.) J. had a

27

difficult time emotionally during the period of separation from his mother. (Id. ¶ 59.) Ms.

28

C. was eventually released from immigration detention on bond, and only recently reunited
5
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1

with J. Their separation lasted more than eight months despite the lack of any allegations

2

or evidence that Ms. C. was unfit or otherwise presented a danger to her son.4

3

Ms. L. and Ms. C. are not the only migrant parents who have been separated from

4

their children at the border. Hundreds of others, who have both lawfully presented at ports

5

of entry (like Ms. L.) and unlawfully crossed into the country (like Ms. C.), have also been

6

separated. Because this practice is affecting large numbers of people, Plaintiffs sought

7

certification of a class consisting of similarly situated individuals. The Court certified that

8

class with minor modifications,5 and now turns to the important question of whether

9

Plaintiffs are entitled to a classwide preliminary injunction that (1) halts the separation of

10

class members from their children absent a determination that the parent is unfit or presents

11

a danger to the child, and (2) reunites class members who are returned to immigration

12

custody upon completion of any criminal proceedings absent a determination that the

13

parent is unfit or presents a danger to the child.

14

Since the present motion was filed, several important developments occurred, as

15

previously noted. First, on May 7, 2018, the Government announced its zero tolerance

16

policy for all adult persons crossing the border illegally, which resulted in the separation

17

of hundreds of children who had crossed with their parents. This is what happened with

18

Ms. C., though she crossed prior to the public announcement of the zero tolerance policy.

19
20
21
22
23
24
25
26
27
28

As stated in the Court’s Order on Defendants’ motion to dismiss, Plaintiffs do not
challenge Ms. C.’s initial separation from J. as a result of the criminal charge filed against
her. Plaintiffs’ only complaint with regard to Ms. C. concerns the Government’s failure to
reunite her with J. after she was returned to immigration custody.
5
The class is defined to include: “All adult parents who enter the United States at or
between designated ports of entry who (1) have been, are, or will be detained in
immigration custody by the [DHS], and (2) have a minor child who is or will be separated
from them by DHS and detained in ORR custody, ORR foster care, or DHS custody absent
a determination that the parent is unfit or presents a danger to the child.” (See Order
Granting in Part Mot. for Class Cert. at 17.) The class does not include parents with
criminal history or communicable disease, or those apprehended in the interior of the
country or subject to the EO. (See id. at 4 n.5.)
4

6
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1

She is not alone. There are hundreds of similarly situated parents, and there are more than

2

2,000 children that have now been separated from their parents.

3

When a parent is charged with a criminal offense, the law ordinarily requires

4

separation of the family. This separation generally occurs regardless of whether the parent

5

is charged with a state or federal offense. The repercussions on the children, however, can

6

vary greatly depending on status. For citizens, there is an established system of social

7

service agencies ready to provide for the care and well-being of the children, if necessary,

8

including child protective services and the foster care system. This is in addition to any

9

family members that may be available to provide shelter for these minor children.

10

Grandparents and siblings are frequently called upon. Non-citizens may not have this kind

11

of support system, such as other family members who can provide shelter for their children

12

in the event the parent is detained at the border. This results in immigrant children going

13

into the custody of the federal government, which is presently not well equipped to handle

14

that important task.

15

For children placed in federal custody, there are two options. One of those options

16

is ORR, but it was established to address a different problem, namely minor children who

17

were apprehended at the border without their parents, i.e., true “unaccompanied alien

18

children.” It was not initially designed to address the problem of migrant children detained

19

with their parents at the border and who were thereafter separated from their parents. The

20

second option is family detention facilities, but the options there are limited. Indeed, at the

21

time of oral argument on this motion, Government counsel represented to the Court that

22

the “total capacity in [family] residential centers” was “less than 2,700.” (Rep. Tr. at 9,

23

May 9, 2018, ECF No. 70.) For male heads of households, i.e., fathers traveling with their

24

children, there was only one facility with “86 beds.” (Id. at 43.)

25

The recently issued EO confirms the government is inundated by the influx of

26

children essentially orphaned as a result of family separation. The EO now directs “[h]eads

27

of executive departments and agencies” to make available “any facilities … appropriate”

28

for the housing and care of alien families. EO § 3(d). The EO also calls upon the military
7
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1

by directing the Secretary of Defense to make available “any existing” facility and to

2

“construct such facilities[,]” if necessary, id. § 3(c), which is an extraordinary measure.

3

Meanwhile, “tent cities” and other make-shift facilities are springing up. That was the

4

situation into which Plaintiffs, and hundreds of other families that were separated at the

5

border in the past several months, were placed.

6

This situation has reached a crisis level. The news media is saturated with stories of

7

immigrant families being separated at the border. People are protesting. Elected officials

8

are weighing in. Congress is threatening action. Seventeen states have now filed a

9

complaint against the Federal Government challenging the family separation practice. See

10

State of Washington v. United States, Case No. 18cv0939, United States District Court for

11

the Western District of Washington. And the President has taken action.

12

Specifically, on June 20, 2018, the President signed the EO referenced above. The

13

EO states it is the Administration’s policy “to maintain family unity, including by detaining

14

alien families together where appropriate and consistent with law and available resources.”

15

Id. § 1.6 In furtherance of that policy, the EO indicates that parents and children who are

16

apprehended together at the border will be detained together “during the pendency of any

17

criminal improper entry or immigration proceedings” to the extent permitted by law. Id. §

18

3. The language of the EO is not absolute, however, as it states that family unity shall be

19

maintained “where appropriate and consistent with law and available resources[,]” id. § 1,

20

and “to the extent permitted by law and subject to the availability of appropriations[.]” Id.

21

§ 3. The EO also indicates rigorous enforcement of illegal border crossers will continue.

22

Id. § 1 (“It is the policy of this Administration to rigorously enforce our immigration

23

laws.”). And finally, although the Order speaks to a policy of “maintain[ing] family unity,”

24
25
26
27
28

The Order defines “alien family” as “any person not a citizen or national of the United
States who has not been admitted into, or is not authorized to enter or remain in, the United
States, who entered this country with an alien child or alien children at or between
designated ports of entry and who was detained[.]” Id. § 2(a)(i).
6

8
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it is silent on the issue of reuniting families that have already been separated or will be

2

separated in the future.” Id.

3

In light of these recent developments, and in particular the EO, the Court held a

4

telephonic status conference with counsel on June 22, 2018. During that conference, the

5

Court inquired about communication between ORR and DHS, and ORR and the

6

Department of Justice (“DOJ”), including the Bureau of Prisons (“BOP”), as it relates to

7

these separated families.

8

whether there was any affirmative reunification procedure for parents and children after

9

parents were returned to immigration detention following completion of criminal

10

proceedings. Government counsel explained the communication procedures that were in

11

place, and represented, consistent with her earlier representation to the Court, that there

12

was no procedure in place for the reunification of these families.7

Reunification procedures were also discussed, specifically

13

The day after the status conference, Saturday, June 23, DHS issued the Fact Sheet

14

referenced above. This document focuses on several issues addressed during the status

15

conference, e.g., processes for enhanced communication between separated parents and

16

children, but only “for the purposes of removal.” It also addresses coordination between

17

and among three agencies, CBP, ICE, and HHS agency ORR, but again for the purpose of

18

removal. The Fact Sheet does not address reunification for other purposes, such as

19

immigration or asylum proceedings, which can take months. It also does not mention other

20

vital agencies frequently involved during criminal proceedings: DOJ and BOP.

21

At the conclusion of the recent status conference, the Court requested supplemental

22

briefing from the parties. Those briefs have now been submitted. After thoroughly

23
24
25
26
27
28

7

The Court: “Is there currently any affirmative reunification process that the government
has in place once parent and child are separated? Government counsel: I would say …
when a parent is released from criminal custody and taken into ICE custody is the practice
to reunite them in family detention[?] And at that [previous hearing] I said no, that that
was not the practice. I think my answer on that narrow question would be the same.” (Rep.
Tr. at 29-30, June 22, 2018, ECF No. 77.)
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considering all of the parties’ briefs and the record in this case, and after hearing argument

2

from counsel on these important issues, the Court grants Plaintiffs’ motion for a classwide

3

preliminary injunction.

4

II.

5

DISCUSSION

6

Plaintiffs seek classwide preliminary relief that (1) enjoins Defendants’ practice of

7

separating class members from their children absent a determination that the parent is unfit

8

or presents a danger to their child, and (2) orders the government to reunite class members

9

with their children when the parent is returned to immigration custody after their criminal

10

proceedings conclude, absent a determination that the parent is unfit or presents a danger

11

to the child. Injunctive relief is “an extraordinary remedy that may only be awarded upon

12

a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def.

13

Council, Inc., 555 U.S. 7, 22 (2008). To meet that showing, Plaintiffs must demonstrate

14

“‘[they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm

15

in the absence of preliminary relief, that the balance of equities tips in [their] favor, and

16

that an injunction is in the public interest.’” Am. Trucking Ass'ns v. City of Los Angeles,

17

559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).8

18
19
20
21
22
23
24
25
26
27
28

8

The Ninth Circuit applies separate standards for injunctions depending on whether they
are prohibitory, i.e., whether they prevent future conduct, or mandatory, i.e., “they go
beyond ‘maintaining the status quo[.]’” Hernandez v. Sessions, 872 F.3d 976, 997 (9th
Cir. 2017). The standard set out above applies to prohibitory injunctions, which is what
Plaintiffs seek here. To the extent Plaintiffs are also requesting mandatory relief, that
request is “subject to a higher standard than prohibitory injunctions,” namely that relief
will issue only “when ‘extreme or very serious damage will result’ that is not capable of
compensation in damages,’ and the merits of the case are not ‘doubtful.’” Id. at 999
(quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879
(9th Cir. 2009)). The Ninth Circuit recognizes that application of these different standards
“is controversial[,]” and that other Circuits have questioned this approach. Id. at 997-98.
This Court need not, and does not, address that discrepancy here. Suffice it to say that to
the extent some portion of Plaintiffs’ requested relief is subject to a standard higher than
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1

Before turning to these factors, the Court addresses directly Defendants’ argument

2

that an injunction is not necessary here in light of the EO and the recently released Fact

3

Sheet. Although these documents reflect some attempts by the Government to address

4

some of the issues in this case, neither obviates the need for injunctive relief here. As

5

indicated throughout this Order, the EO is subject to various qualifications. For instance,

6

Plaintiffs correctly assert the EO allows the government to separate a migrant parent from

7

his or her child “where there is a concern that detention of an alien child with the child’s

8

alien parent would pose a risk to the child’s welfare.” EO § 3(b) (emphasis added).

9

Objective standards are necessary, not subjective ones, particularly in light of the history

10

of this case. Furthermore, the Fact Sheet focuses on reunification “at time of removal[,]”

11

U.S. Dep’t of Homeland Sec., supra, note 2, stating that the parent slated for removal will

12

be matched up with their child at a location in Texas and then removed. It says nothing

13

about reunification during the intervening time between return from criminal proceedings

14

to ICE detention or the time in ICE detention prior to actual removal, which can take

15

months. Indeed, it is undisputed “ICE has no plans or procedures in place to reunify the

16

parent with the child other than arranging for them to be deported together after the parent’s

17

immigration case is concluded.” (Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex.

18

31 ¶ 11.) Thus, neither of these directives eliminates the need for an injunction in this case.

19

With this finding, the Court now turns to the Winter factors.

20

A.

Likelihood of Success

21

“The first factor under Winter is the most important—likely success on the merits.”

22

Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Plaintiffs carry the burden

23

of demonstrating likelihood of success, they are not required to prove their case in full at

24

the preliminary injunction stage but only such portions that enable them to obtain the

25

injunctive relief they seek. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

26
27
28

the traditional standard for injunctive relief, Plaintiffs have met their burden for the reasons
set out below.
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Here, the only claim currently at issue is Plaintiffs’ due process claim.9 Specifically,

2

Plaintiffs contend the Government’s practice of separating class members from their

3

children, and failing to reunite those parents who have been separated, without a

4

determination that the parent is unfit or presents a danger to the child violates the parents’

5

substantive due process rights to family integrity under the Fifth Amendment to the United

6

States Constitution. To prevail on this claim, Plaintiffs must show that the Government

7

practice “shocks the conscience.” In the Order on Defendants’ motion to dismiss, the Court

8

found Plaintiffs had set forth sufficient facts to support that claim. Ms. L., 2018 WL

9

2725736, at *7-12. The evidence submitted since that time supports that finding, and

10

demonstrates Plaintiffs are likely to succeed on this claim.

11

As explained in the Court’s Order on Defendants’ motion to dismiss, the “shocks the

12

conscience” standard is not subject to a rigid list of established elements. See County of

13

Sacramento v. Lewis, 523 U.S. 833, 850 (1998) (stating “[r]ules of due process are not …

14

subject to mechanical application in unfamiliar territory.”)

15

investigation into substantive due process involves an appraisal of the totality of the

16

circumstances rather than a formalistic examination of fixed elements[.]” Armstrong v.

17

Squadrito, 152 F.3d 564, 570 (7th Cir. 1998).

On the contrary, “an

18

Here, each Plaintiff presents different circumstances, but both were subjected to the

19

same government practice of family separation without a determination that the parent was

20

unfit or presented a danger to the child. Ms. L. was separated from her child without a

21

determination she was unfit or presented a danger to her child, and Ms. C. was not reunited

22

with her child despite the absence of any finding that she was unfit or presented a danger

23
24
25
26
27
28

In their supplemental brief, Defendants assert Plaintiffs are raising new claims based on
events that transpired after the Complaints were filed, e.g., the announcement of the zero
tolerance policy and the EO. The Court disagrees. Plaintiffs’ claims are not based on these
events, but are based on the practice of separating class members from their children. The
subsequent events are relevant to Plaintiffs’ claim, but they have not changed the claim
itself, which remains focused on the practice of separation.
9

12
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to her child. Outside of the context of this case, namely an international border, Plaintiffs

2

would have a high likelihood of success on a claim premised on such a practice. See D.B.

3

v. Cardall, 826 F.3d 721, 741 (4th Cir. 2016) (citing cases finding due process violation

4

where state action interfered with rights of fit parents); Heartland Academy Community

5

Church v. Waddle, 595 F.3d 798, 808-811 (8th Cir. 2010) (finding removal of children

6

from religious school absent evidence the students were “at immediate risk of child abuse

7

or neglect” was violation of clearly established constitutional right); Brokaw v. Mercer

8

County, 235 F.3d 1000, 1019 (7th Cir. 2000) (citing Croft v. Westmoreland County

9

Children and Youth Services, 103 F.3d 1123, 1126 (3d Cir. 1997) (“courts have recognized

10

that a state has no interest in protecting children from their parents unless it has some

11

definite and articulable evidence giving rise to a reasonable suspicion that a child has been

12

abused or is in imminent danger of abuse.”)

13

The context of this case is different. The Executive Branch, which is tasked with

14

enforcement of the country’s criminal and immigration laws, is acting within its powers to

15

detain individuals lawfully entering the United States and to apprehend individuals illegally

16

entering the country. However, as the Court explained in its Order on Defendants’ motion

17

to dismiss, the right to family integrity still applies here. The context of the family

18

separation practice at issue here, namely an international border, does not render the

19

practice constitutional, nor does it shield the practice from judicial review.

20

On the contrary, the context and circumstances in which this practice of family

21

separation were being implemented support a finding that Plaintiffs have a likelihood of

22

success on their due process claim. First, although parents and children may lawfully be

23

separated when the parent is placed in criminal custody, the same general rule does not

24

apply when a parent and child present together lawfully at a port of entry seeking asylum.

25

In that situation, the parent has committed no crime, and absent a finding the parent is unfit

26

or presents a danger to the child, it is unclear why separation of Ms. L. or similarly situated

27

class members would be necessary. Here, many of the family separations have been the

28

result of the Executive Branch’s zero tolerance policy, but the record also reflects that the
13
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practice of family separation was occurring before the zero tolerance policy was

2

announced, and that practice has resulted in the casual, if not deliberate, separation of

3

families that lawfully present at the port of entry, not just those who cross into the country

4

illegally. Ms. L. is an example of this family separation practice expanding beyond its

5

lawful reach, and she is not alone. (See, e.g., Pls.’ Reply Br. in Supp. of Mot. for Class

6

Cert., Exs. 22-23, 25-26) (declarations from parents attesting to separation at border after

7

lawfully presenting at port of entry and requesting asylum); Pls.’ Supp. Mem. in Supp. of

8

Classwide Prelim. Inj., Ex. 32 ¶¶ 9, 10b, 11a (listing parents who were separated from

9

children after presenting at ports of entry)).

10

As set out in the Court’s prior Order, asylum seekers like Ms. L. and many other

11

class members may be fleeing persecution and are entitled to careful consideration by

12

government officials. Particularly so if they have a credible fear of persecution. We are a

13

country of laws, and of compassion. We have plainly stated our intent to treat refugees

14

with an ordered process, and benevolence, by codifying principles of asylum. See, e.g.,

15

The Refugee Act, PL 96-212, 94 Stat. 102 (1980). The Government’s treatment of Ms. L.

16

and other similarly situated class members does not meet this standard, and it is unlikely

17

to pass constitutional muster.

18

Second, the practice of separating these families was implemented without any

19

effective system or procedure for (1) tracking the children after they were separated from

20

their parents, (2) enabling communication between the parents and their children after

21

separation, and (3) reuniting the parents and children after the parents are returned to

22

immigration custody following completion of their criminal sentence. This is a startling

23

reality. The government readily keeps track of personal property of detainees in criminal

24

and immigration proceedings. Money, important documents, and automobiles, to name a

25

few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at

26

all levels—state and federal, citizen and alien. Yet, the government has no system in place

27

to keep track of, provide effective communication with, and promptly produce alien

28

children. The unfortunate reality is that under the present system migrant children are not
14
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accounted for with the same efficiency and accuracy as property. Certainly, that cannot

2

satisfy the requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 758-59

3

(1982) (quoting Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18,

4

(1981)) (stating it is “‘plain beyond the need for multiple citation’ that a natural parent’s

5

‘desire for and right to the companionship, care, custody, and management of his or her

6

children’ is an interest far more precious than any property right.”) (internal quotation

7

marks omitted).

8

The lack of effective methods for communication between parents and children who

9

have been separated has also had a profoundly negative effect on the parents’ criminal and

10

immigration proceedings, as well as the childrens’ immigration proceedings. See United

11

States v. Dominguez-Portillo, No:EP-17-MJ-4409-MAT, 2018 WL 315759, at *1-2 (W.D.

12

Tex. Jan. 5, 2018) (explaining that criminally charged defendants “had not received any

13

paperwork or information concerning the whereabouts or well-being of” their children). In

14

effect, these parents have been left “in a vacuum, without knowledge of the well-being and

15

location of their children, to say nothing of the immigration proceedings in which those

16

minor children find themselves.” Id. at *14. This situation may result in a number of

17

different scenarios, all of which are negative – some profoundly so. For example, “[i]f

18

parent and child are asserting or intending to assert an asylum claim, that child may be

19

navigating those legal waters without the benefit of communication with and assistance

20

from her parent; that defendant, too, must make a decision on his criminal case with total

21

uncertainty about this issue.” Id. Furthermore, “ a defendant facing certain deportation

22

would be unlikely to know whether he might be deported before, simultaneous to, or after

23

their child, or whether they would have the opportunity to even discuss their

24

deportations[.]” Id. Indeed, some parents have already been deported without their

25

children, who remain in government facilities in the United States.10

26
27
28

See, e.g., Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex. 32 ¶ 16k, Ex. 36 ¶ 7a;
Nelson Renteria, El Salvador demands U.S. return child taken from deported father,
10

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The absence of established procedures for dealing with families that have been

2

separated at the border, and the effects of that void on the families involved, is borne out

3

in the cases of Plaintiffs here. Ms. L. was separated from her child when immigration

4

officials claimed they could not verify she was S.S.’s mother, and detained her for

5

expedited removal proceedings. That rendered S.S. “unaccompanied” under the TVPRA

6

and subject to immediate transfer to ORR, which accepted responsibility for S.S. There

7

was no further communication between the agencies, ICE and ORR. The filing of the

8

present lawsuit prompted release and reunification of Ms. L. and her daughter, a process

9

that took close to five months and court involvement. Ms. C. completed her criminal

10

sentence in 25 days, but it took nearly eight months to be reunited with her son. She, too,

11

had to file suit to regain custody of her son from ORR.

12

These situations confirm what the Government has already stated: it is not

13

affirmatively reuniting parents like Plaintiffs and their fellow class members for purposes

14

other than removal. Outside of deportation, the onus is on the parents, who, for the most

15

part, are themselves in either criminal or immigration proceedings, to contact ORR or

16

otherwise search for their children and make application for reunification under the

17

TVPRA. However, this reunification procedure was not designed to deal with the present

18

circumstances. (See Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex. 33 ¶¶ 6-9.)

19

Rather, “ORR’s reunification process was designed to address the situation of children who

20

come to the border or are apprehended outside the company of a parent or legal guardian.”

21

(Id. ¶ 6.) Placing the burden on the parents to find and request reunification with their

22

children under the circumstances presented here is backwards.

When children are

23
24
25
26
27
28

REUTERS (June 21, 2018, 4:03 PM), https://www.reuters.com/article/us-usa-immigrationel-salvador/el-salvador-demands-us-return-child-taken-from-deported-fatheridUSKBN1JH3ER; Miriam Jordan, ‘I Can’t Go Without My Son’: A Deported Mother’s
Plea, N.Y. TIMES (June 17, 2018), https://www.nytimes.com/2018/06/17/us/immigrationdeported-parents.html.
16
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separated from their parents under these circumstances, the Government has an affirmative

2

obligation to track and promptly reunify these family members.

3

This practice of separating class members from their minor children, and failing to

4

reunify class members with those children, without any showing the parent is unfit or

5

presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on

6

their due process claim. When combined with the manner in which that practice is being

7

implemented, e.g., the lack of any effective procedures or protocols for notifying the

8

parents about their childrens’ whereabouts or ensuring communication between the parents

9

and children, and the use of the children as tools in the parents’ criminal and immigration

10

proceedings, (see Pls.’ Supp. Mem. in Supp. of Classwide Prelim. Inj., Ex. 29 ¶¶ 8, 14), a

11

finding of likelihood of success is assured. A practice of this sort implemented in this way

12

is likely to be “so egregious, so outrageous, that it may fairly be said to shock the

13

contemporary conscience,” Lewis, 523 U.S. at 847 n.8, interferes with rights “‘implicit in

14

the concept of ordered liberty[,]’” Rochin v. Cal., 342 U.S. 165, 169 (1952) (quoting Palko

15

v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and ‘offensive’ that it

16

[does] not comport with traditional ideas of fair play and decency.” Breithaupt v. Abram,

17

352 U.S. 432, 435 (1957).

18

For all of these reasons, the Court finds there is a likelihood of success on Plaintiffs’

19

due process claim.

20

B.

Irreparable Injury

21

Turning to the next factor, Plaintiffs must show they are “‘likely to suffer irreparable

22

harm in the absence of preliminary relief.’” Hernandez v. Sessions, 872 F.3d 976, 994 (9th

23

Cir. 2017) (quoting Winter, 555 U.S. at 20). “‘It is well established that the deprivation of

24

constitutional rights unquestionably constitutes irreparable injury.’”

25

Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (internal quotation marks

26

omitted). As explained, Plaintiffs have demonstrated the likelihood of a deprivation of

27

their constitutional rights, and thus they have satisfied this factor.

Id. (quoting

28
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The injury in this case, however, deserves special mention. That injury is the

2

separation of a parent from his or her child, which the Ninth Circuit has repeatedly found

3

constitutes irreparable harm. See Leiva–Perez v. Holder, 640 F.3d 962, 969–70 (9th Cir.

4

2011); Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (identifying “separated

5

families” as an irreparable harm).

6

Furthermore, the record in this case reflects that the separations at issue have been

7

agonizing for the parents who have endured them. One of those parents, Mr. U., an asylum

8

seeker from Kyrgyzstan, submitted a declaration in this case in which he stated that after

9

he was told he was going to be separated from his son he “felt as though [he] was having

10

a heart attack.” (Reply in Supp. of Mot. for Class Cert., Ex. 21 ¶ 4.) Another asylum-

11

seeking parent from El Salvador who was separated from her two sons writes,

12
13
14
15

The separation from my sons has been incredibly hard, because I have never
been away from them before. I do not want my children to think that I
abandoned them. [My children] are so attached to me. [One of my children]
used to sleep in bed with me every night while [my other child] slept in his
own bed in the same room.… It hurts me to think how anxious and distressed
they must be without me.

16
17

(Reply in Supp. of Mot. for Class Cert., Ex. 24 ¶ 9.) And another asylum-seeking parent

18

from Honduras described having to place her crying 18-month old son in a car seat in a

19

government vehicle, not being able to comfort him, and her crying as the officers “took

20

[her] son away.” (Reply in Supp. of Mot. for Class Cert., Ex. 25 ¶ 7.) There has even been

21

a report that one father committed suicide in custody after being separated from his wife

22

and three-year-old child.

23

Separated From Family is Found Dead in Texas Jail in an Apparent Suicide, L.A. TIMES

24

(June 9, 2018, 5:35 PM), http://www.latimes.com/nation/la-na-border-patrol-suicide-

25

20180609-story.html.

26
27

See Molly Hennessy-Fiske, Honduran Migrant Who Was

The parents, however, are not the only ones suffering from the separations. One of
the amici in this case, Children’s Defense Fund, states,

28
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2
3
4
5

there is ample evidence that separating children from their mothers or fathers
leads to serious, negative consequences to children’s health and development.
Forced separation disrupts the parent-child relationship and puts children at
increased risk for both physical and mental illness.... And the psychological
distress, anxiety, and depression associated with separation from a parent
would follow the children well after the immediate period of separation—
even after eventual reunification with a parent or other family.

6
7

(ECF No. 17-11 at 3.) Other evidence before the Court reflects that “separating children

8

from parents is a highly destabilizing, traumatic experience that has long term

9

consequences on child well-being, safety, and development.” (ECF No. 17-13 at 2.) That

10
11
12
13
14
15
16
17

evidence reflects:
Separation from family leaves children more vulnerable to exploitation and
abuse, no matter what the care setting. In addition, traumatic separation from
parents creates toxic stress in children and adolescents that can profoundly
impact their development. Strong scientific evidence shows that toxic stress
disrupts the development of brain architecture and other organ systems, and
increases the risk for stress-related disease and cognitive impairment well into
adult years. Studies have shown that children who experience such traumatic
events can suffer from symptoms of anxiety and post-traumatic stress
disorder, have poorer behavioral and educational outcomes, and experience
higher rates of poverty and food insecurity.

18
19

(ECF No. 17-13 at 2.) And Martin Guggenheim, the Fiorello LaGuardia Professor of

20

Clinical Law at New York University School of Law and Founding Member of the Center

21

for Family Representation, states:

22
23
24
25

Children are at risk of suffering great emotional harm when they are removed
from their loved ones. And children who have traveled from afar and made
their way to this country to seek asylum are especially at risk of suffering
irreversible psychological harm when wrested from the custody of the parent
or caregiver with whom they traveled to the United States.

26

(Mem. in Supp. of Classwide Prelim. Inj., Ex. 17 ¶ 16.) All of this evidence, combined

27

with the constitutional violation alleged here, conclusively shows that Plaintiffs and the

28
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class members are likely to suffer irreparable injury if a preliminary injunction does not

2

issue.

3

C.

Balance of Equities

4

Turning to the next factor, “[t]o obtain a preliminary injunction, a plaintiff must also

5

demonstrate that ‘the balance of equities tips in his favor.’” Hernandez, 872 F.3d at 995

6

(quoting Winter, 555 U.S. at 20). As with irreparable injury, when a plaintiff establishes

7

“a likelihood that Defendants’ policy violates the U.S. Constitution, Plaintiffs have also

8

established that both the public interest and the balance of the equities favor a preliminary

9

injunction.” Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014).

10

Plaintiffs here assert the balance of equities weighs in favor of an injunction in this

11

case. Specifically, Plaintiffs argue Defendants would not suffer any hardship if the

12

preliminary injunction is issued because the Government “cannot suffer harm from an

13

injunction that merely ends an unlawful practice[.]” Rodriguez v. Robbins, 715 F.3d 1127,

14

1145 (9th Cir. 2013); see also Arizona Dream Act Coalition, 757 F.3d at 1069 (quoting

15

Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)) (stating balance of equities favors

16

“‘prevent[ing] the violation of a party’s constitutional rights.’”). When the absence of harm

17

to the Government is weighed against the harms to Plaintiffs set out above, Plaintiffs argue

18

this factor weighs in their favor. The Court agrees.

19

The primary harm Defendants assert here is the possibility that an injunction would

20

have a negative impact on their ability to enforce the criminal and immigration laws.

21

However, the injunction here—preventing the separation of parents from their children and

22

ordering the reunification of parents and children that have been separated—would do

23

nothing of the sort. The Government would remain free to enforce its criminal and

24

immigration laws, and to exercise its discretion in matters of release and detention

25

consistent with law. See EO §§ 1, 3(a) & (e) (discussing Flores v. Sessions, CV 85-4544);

26

see also Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1439-40 (9th Cir. 1986)

27

(stating “prudential considerations preclude[] interference with the Attorney General’s

28

[exercise of] discretion” in selecting the detention facilities where aliens are to be
20
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detained). It would just have to do so in a way that preserves the class members’

2

constitutional rights to family association and integrity. See Rodriguez, 715 F.3d at 1146

3

(“While ICE is entitled to carry out its duty to enforce the mandates of Congress, it must

4

do so in a manner consistent with our constitutional values.”) Thus, this factor also weighs

5

in favor of issuing the injunction.

6

D.

Public Interest

7

The final factor for consideration is the public interest. See Hernandez, 872 F.3d at

8

996 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)) (“When, as

9

here, ‘the impact of an injunction reaches beyond the parties, carrying with it a potential

10

for public consequences, the public interest will be relevant to whether the district court

11

grants the preliminary injunction.’”) To obtain the requested relief, “Plaintiffs must

12

demonstrate that the public interest favors granting the injunction ‘in light of [its] likely

13

consequences,’ i.e., ‘consequences [that are not] too remote, insubstantial, or speculative

14

and [are] supported by evidence.’” Id. (quoting Stormans, 586 F.3d at 1139). “‘Generally,

15

public interest concerns are implicated when a constitutional right has been violated,

16

because all citizens have a stake in upholding the Constitution.’” Id. (quoting Preminger

17

v. Principi, 422 F.3d 815, 826 (9th Cir. 2005)).

18

This case involves two important public interests: the interest in enforcing the

19

country’s criminal and immigration laws and the constitutional liberty interest “of parents

20

in the care, custody, and control of their children[,]” which “is perhaps the oldest of the

21

fundamental liberty interests recognized by” the Supreme Court. Troxel v. Granville, 530

22

U.S. 57, 65 (2000). Both of these interests are valid and important, and both can be served

23

by the issuance of an injunction in this case.

24

As stated, the public’s interest in enforcing the criminal and immigration laws of this

25

country would be unaffected by issuance of the requested injunction. The Executive

26

Branch is free to prosecute illegal border crossers and institute immigration proceedings

27

against aliens, and would remain free to do so if an injunction were issued. Plaintiffs do

28

not seek to enjoin the Executive Branch from carrying out its duties in that regard.
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What Plaintiffs do seek by way of the requested injunction is to uphold their rights

2

to family integrity and association while their immigration proceedings are underway. This

3

right, specifically, the relationship between parent and child, is “constitutionally

4

protected,” Quilloin v. Walcott, 434 U.S. 246, 255 (1978), and “well established.”

5

Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011). The public interest in

6

upholding and protecting that right in the circumstances presented here would be served

7

by issuance of the requested injunction. See Arizona Dream Act Coalition, 757 F.3d at

8

1069 (quoting Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (“‘[I]t is

9

clear that it would not be equitable or in the public’s interest to allow the state … to violate

10

the requirements of federal law, especially when there are no adequate remedies

11

available.’”) Accordingly, this factor, too, weighs in favor of issuing the injunction.

12

III.

13

CONCLUSION

14

The unfolding events—the zero tolerance policy, EO and DHS Fact Sheet—serve to

15

corroborate Plaintiffs’ allegations. The facts set forth before the Court portray reactive

16

governance—responses to address a chaotic circumstance of the Government’s own

17

making. They belie measured and ordered governance, which is central to the concept of

18

due process enshrined in our Constitution. This is particularly so in the treatment of

19

migrants, many of whom are asylum seekers and small children. The extraordinary remedy

20

of classwide preliminary injunction is warranted based on the evidence before the Court.

21

For the reasons set out above, the Court hereby GRANTS Plaintiffs’ motion for classwide

22

preliminary injunction, and finds and orders as follows:

23

(1)

Defendants, and their officers, agents, servants, employees, attorneys, and all those

24

who are in active concert or participation with them, are preliminarily enjoined from

25

detaining Class Members in DHS custody without and apart from their minor

26

children, absent a determination that the parent is unfit or presents a danger to the

27
28
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child, unless the parent affirmatively, knowingly, and voluntarily declines to be

2

reunited with the child in DHS custody.11

3

(2)

If Defendants choose to release Class Members from DHS custody, Defendants, and

4

their officers, agents, servants, employees and attorneys, and all those who are in

5

active concert or participation with them, are preliminary enjoined from continuing

6

to detain the minor children of the Class Members and must release the minor child

7

to the custody of the Class Member, unless there is a determination that the parent

8

is unfit or presents a danger to the child, or the parent affirmatively, knowingly, and

9

voluntarily declines to be reunited with the child.

10

(3)

Unless there is a determination that the parent is unfit or presents a danger to the

11

child, or the parent affirmatively, knowingly, and voluntarily declines to be reunited

12

with the child:

13

(a)

14

under the age of five (5) within fourteen (14) days of the entry of this Order; and

15

(b)

16

(5) and over within thirty (30) days of the entry of this Order.

17

(4)

Defendants must reunify all Class Members with their minor children who are
Defendants must reunify all Class Members with their minor children age five

Defendants must immediately take all steps necessary to facilitate regular

18

communication between Class Members and their children who remain in ORR

19

custody, ORR foster care, or DHS custody. Within ten (10) days, Defendants must

20

provide parents telephonic contact with their children if the parent is not already in

21

contact with his or her child.

22
23
24
25
26
27
28

“Fitness” is an important factor in determining whether to separate parent from child. In
the context of this case, and enforcement of criminal and immigration laws at the border,
“fitness” could include a class member’s mental health, or potential criminal involvement
in matters other than “improper entry” under 8 U.S.C. § 1325(a), (see EO § 1), among other
matters. Fitness factors ordinarily would be objective and clinical, and would allow for the
proper exercise of discretion by government officials.
11

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(5)

Defendants must immediately take all steps necessary to facilitate regular

2

communication between and among all executive agencies responsible for the

3

custody, detention or shelter of Class Members and the custody and care of their

4

children, including at least ICE, CBP, BOP, and ORR, regarding the location and

5

well-being of the Class Members’ children.

6

(6)

Defendants, and their officers, agents, servants, employees, attorneys, and all those

7

who are in active concert or participation with them, are preliminarily enjoined from

8

removing any Class Members without their child, unless the Class Member

9

affirmatively, knowingly, and voluntarily declines to be reunited with the child prior

10

to the Class Member’s deportation, or there is a determination that the parent is unfit

11

or presents a danger to the child.

12

(7)

This Court retains jurisdiction to entertain such further proceedings and to enter such

13

further orders as may be necessary or appropriate to implement and enforce the

14

provisions of this Order and Preliminary Injunction.

15

A status conference will be held on July 6, 2018, at 12:00 noon, to discuss all

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necessary matters. A notice of teleconference information sheet will be provided in a

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separate order.

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IT IS SO ORDERED.
Dated: June 26, 2018

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Case 2:85-cv-04544-DMG-AGR Document 447-2 Filed 06/29/18 Page 1 of 3 Page ID
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HONORABLE DOLLY M. GEE, JUDGE PRESIDING

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JENNY L. FLORES, et al.,

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Plaintiffs,
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)No. 85-4544DMG
VS
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EDWIN MEESE, et al.,
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Defendants.
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_____________________________________)

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Reporter's Transcript of Proceedings
Plaintiffs' Motion to Enforce Settlement of Class Action
Defendant's motion to Modify Settlement Agreement
Los Angeles, California
FRIDAY, APRIL 24, 2015

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ANNE KIELWASSER, CRR, RPR, CSR
Federal Official Court Reporter
312 North Spring Street, Room 432
Los Angeles, California 90012
Telephone: [phone]
[e-mail]
AKtranscripts.com
UNITED STATES DISTRICT COURT

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Case 2:85-cv-04544-DMG-AGR Document 447-2 Filed 06/29/18 Page 2 of 3 Page ID
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housing in situations where there is a search, such that they

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could be housed there pending a determination as to where

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they should be sent?

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MR. HOLGUIN:

Yes, Your Honor.

The settlement --

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the settlement contemplates, and when there is a large number

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of individuals, then they can be housed in noncompliant

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facilities.

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either release or transfer the minors to properly licensed

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facilities.

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But the government must be making efforts to

And -- and that is something that we can work

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out if we're talking about with the -- with the defendants

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about how those facilities -- how long people could be kept

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there and so forth.

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to minimize the amount of time that children spend in

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detention.

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to keep them in properly licensed facilities.

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As long as there is a good faith effort

That's the whole purpose of the settlement.

And

And as long as the government is moving in

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that direction, the plaintiffs are willing to be reasonable

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in providing some kind of accommodations to allow the

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transition to take place in an orderly fashion.

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THE COURT:

And does the agreement as it stands

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allow for an accomodation to either a minor or a parent who

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wishes to remain in the facility?

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MR. HOLGUIN:

Your Honor, our -- the plaintiffs'

position is, and we can provide authority to this, if we

UNITED STATES DISTRICT COURT

Case 2:85-cv-04544-DMG-AGR Document 447-2 Filed 06/29/18 Page 3 of 3 Page ID
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haven't already done, I believe we have, is that whenever

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there is a settlement that confers rights on a class member,

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a class member is entitled to waive those rights.
Mothers and parents speak for children all

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the time.

I don't really consider this to be an unusual

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situation or one that sets up some untenable chain of order

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where there's a conflict between a parent and a child.
I have children of my own, and the law is

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quite clear when I get to make decisions for them and when

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they get -- when they reach the age of maturity, when they're

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able to make their decisions.
So, this is -- this is something that I think

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can also be worked out.

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THE COURT:

All right, anything further?

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MR. HOLGUIN:

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THE COURT:

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MR. FRESCO:

No, Your Honor.

Mr. Fresco?
Just -- just a couple of notes, Your

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Honor, quickly.

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their affidavit of Brigit Cambria, it says quote/unquote:

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"Berks is clearly a secure facility."

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Plaintiffs' Exhibit 10, Paragraph 6 from

So, any evidence they're going to have now to

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be opposite will be in conflict with that statement, Your

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Honor.

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Second of all, Your Honor, there is no
dispute that Berks has been operating since 2001 as a secure

UNITED STATES DISTRICT COURT