State of Washington et al v. United States of America et al
Filing
21
RESPONSE, by Defendants Alex Azar, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, Donald Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, to #15 MOTION to Expedite Discovery and Regular Staus Conferences. Oral Argument Requested. (Attachments: #1 Appendix A, #2 Exhibit 1, #3 Exhibit 2)(Murley, Nicole)
Hon. Marsha J. Pechman
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
State of Washington, et al.,
Plaintiffs,
v.
Case No. 2:18-cv-00939
The United States of America, et al.,
Defendants.
DEFENDANTS’ APPENDIX A
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 305-0106
FACSIMILE: (202) 305-700
INDEX OF APPENDIX A
Exhibit
Title
1
Copy of Docket Sheet, Ms. L v. U.S. ICE, No. 18-428 (S.D. Cal.)
(Retrieved July 11, 2018)
2
Dkt. 71, Order on Defendants’ Motion to Dismiss, Ms. L v. U.S. ICE, No.
18-428 (S.D. Cal.) (June 6, 2018)
3
Dkt. 82, Order on Plaintiffs’ Motion for Class Certification, Ms. L v. U.S.
ICE, No. 18-428 (S.D. Cal.) (June 26, 2018)
4
Dkt. 83, Order on Plaintiffs’ Motion for Classwide Preliminary Injunction,
Ms. L v. U.S. ICE, No. 18-428 (S.D. Cal.) (June 26, 2018)
5
Dkt. 85, Plaintiffs’ Second Amended Complaint, Ms. L v. U.S. ICE, No. 18428 (S.D. Cal.) (July 3, 2018)
6
Dkt. 86, Respondents’ Notice on Compliance, Ms. L v. U.S. ICE, No. 18428 (S.D. Cal.) (July 5, 2018)
7
Dkt. 88, Declaration of Robert Guardian, Acting Deputy Assistant Director,
Domestic Operations Division, Western Operations, Enforcement and
Removal Operations, U.S. Immigration and Customs Enforcement,
Department of Homeland Security, Ms. L v. U.S. ICE, No. 18-428 (S.D. Cal.)
(July 6, 2018)
8
Dkt. 91, Order Setting Further Status Conference, Ms. L v. U.S. ICE, No.
18-428 (S.D. Cal.) (July 6, 2018)
9
Dkt. 95, Order Following Status Conference, Ms. L v. U.S. ICE, No. 18-428
(S.D. Cal.) (July 9, 2018)
10
Dkt. 96, Joint Status Report Regarding Process for Release of UACs, Ms. L
v. U.S. ICE, No. 18-428 (S.D. Cal.) (July 9, 2018)
11
Dkt. 97, Joint Status Report Regarding Notice to Class Members, Ms. L v.
U.S. ICE, No. 18-428 (S.D. Cal.) (July 9, 2018)
12
Dkt. 98, Declaration of Michelle Brané, Attorney and Director of the
Migrant Rights and Justice Program at the Women’s Refugee Commission,
and Jennifer Podkul, Attorney and Director of Policy at Kids in Need of
Defense, Ms. L v. U.S. ICE, No. 18-428 (S.D. Cal.) (July 9, 2018)
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 305-0106
FACSIMILE: (202) 305-700
13
Dkt. 99, Joint Status Report Regarding Reunification, Ms. L v. U.S. ICE, No.
18-428 (S.D. Cal.) (July 10, 2018)
14
Dkt. 101, Order Following Status Conference, Ms. L v. U.S. ICE, No. 18428 (S.D. Cal.) (July 10, 2018)
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 305-0106
FACSIMILE: (202) 305-700
Exhibit 1
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
LexisNexis CourtLink - Show Docket
Page 1 of 30
US District Court Civil Docket
U.S. District - California Southern
(San Diego)
3:18cv428
Ms. L. v. U.S. Immigration And Customs Enforcement et al
This case was retrieved from the court on Wednesday, July 11, 2018
Date Filed: 02/26/2018
Assigned To: Judge Dana M. Sabraw
Referred To: Magistrate Judge Mitchell D.
Dembin
Nature of
suit: Other Civil Rights (440)
Cause: Immigration & Nationality
Act, Section 208 (Asylum)
Lead Docket: None
Other
Docket: None
Class Code: OPEN
Closed:
Statute: 08:1158
Jury Demand: None
Demand Amount: $0
NOS Description: Other Civil Rights
Jurisdiction: U.S. Government Defendant
Litigants
Ms. L.
Petitioner
Attorneys
Anand Venkata Balakrishnan
LEAD ATTORNEY;PRO HAC VICE;ATTORNEY TO BE
NOTICED
ACLU Immigrants Rights Project
125 Broad Street 18th Floor
New York , NY 10004
USA
212-549-2618
Email:Abalakrishnan@aclu.Org
Bardis Vakili
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego , CA 92138-7131
USA
(619) 232-2121
Fax: (619) 232-0036
Email:Bvakili@aclusandiego.Org
Judy Rabinovitz
LEAD ATTORNEY;PRO HAC VICE;ATTORNEY TO BE
NOTICED
ACLU Immigrants Right Project
125 Broad Street 18th Floor
New York , NY 10004
https://courtlink.lexisnexis.com/ControlSupport/UserControls/ShowDocket.aspx?Key=380... 7/11/2018
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USA
212-549-2618
Email:Jrabinovitz@aclu.Org
Lee Gelernt
LEAD ATTORNEY;PRO HAC VICE;ATTORNEY TO BE
NOTICED
ACLU Immigrants' Rights Project
125 Broad Street
New York , NY 10004
USA
242-549-2660 X2616
Fax: 212-549-2654
Email:Lgelernt@aclu.Org
Stephen B. Kang
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
American Civil Liberties Union Found. of Northern
California
39 Drumm Street
San Francisco , CA 94111
USA
415-343-0070 X0783
Fax: 415-395-0950
Email:Skang@aclu.Org
Spencer E. W. Amdur
ATTORNEY TO BE NOTICED
ACLU Immigants' Rights Project
39 Drumm Street
San Francisco , CA 94111
USA
415-343-1198
Fax: 415-395-0950
Email:Samdur@aclu.Org
Ms. C.
Petitioner
Stephen B. Kang
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
American Civil Liberties Union Found. of Northern
California
39 Drumm Street
San Francisco , CA 94111
USA
415-343-0070 X0783
Fax: 415-395-0950
Email:Skang@aclu.Org
Lee Gelernt
ATTORNEY TO BE NOTICED
ACLU Immigrants' Rights Project
125 Broad Street
New York , NY 10004
USA
242-549-2660 X2616
Fax: 212-549-2654
Email:Lgelernt@aclu.Org
U.S. Immigration And Customs Enforcement
(ICE)
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
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Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
U.S. Department of Homeland Security
(DHS)
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
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U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
U.S. Customs And Border Protection
(CBP)
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
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Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
U.S. Citizenship And Immigration Services
(USCIS)
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
https://courtlink.lexisnexis.com/ControlSupport/UserControls/ShowDocket.aspx?Key=380... 7/11/2018
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Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
U.S. Department of Health And Human Services
(HHS)
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
https://courtlink.lexisnexis.com/ControlSupport/UserControls/ShowDocket.aspx?Key=380... 7/11/2018
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202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Office of Refugee Resettlement
(ORR)
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
https://courtlink.lexisnexis.com/ControlSupport/UserControls/ShowDocket.aspx?Key=380... 7/11/2018
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USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Thomas Homan
Acting Director of ICE
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Greg Archambeault
San Diego Field Office Director, ICE
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
https://courtlink.lexisnexis.com/ControlSupport/UserControls/ShowDocket.aspx?Key=380... 7/11/2018
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San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Joseph Greene
San Diego Assistant Field Office Director, ICE
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
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Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Kirstjen Nielsen
Secretary of DHS
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
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LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Jefferson Beauregard Sessions, III
Attorney General of the United States
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
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Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Kevin K. Mcaleenan
Acting Commissioner of CBP
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
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Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
L. Francis Cissna
Director of USCIS
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
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202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Pete Flores
San Diego Field Director, CBP
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Fred Figueroa
Warden, Otay Mesa Detention Center
[Term: 03/09/2018]
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
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USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Alex Azar
Secretary of the Department of Health and Human
Services
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
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Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Scott Lloyd
Director of the Office of Refugee Resettlement
Respondent
U S Attorney CV
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorneys Office Southern District of California
Civil Division 880 Front Street Suite 6253
San Diego , CA 92101
USA
(619)557-5662
Fax: (619)557-7122
Email:Efile.Dkt.Civ@usdoj.Gov
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Nicole N. Murley
ATTORNEY TO BE NOTICED
U.S. Department of Justice
P.O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-616-0473
Fax: 202-305-7000
Email:Nicole.Murley@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Hector A. Mancha Jr.
El Paso Field Director, CBP
Respondent
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
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Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Adrian P. Macias
El Paso Field Director, ICE
Respondent
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
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Francis M. Jackson
El Paso Assistant Field Office Director, ICE
Respondent
Page 18 of 30
Samuel William Bettwy
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U S Attorney's Office Southern District of California
Civil Division 880 Front Street
Room 6293
San Diego , CA 92101-8893
USA
(619) 546-7125
Fax: (619) 546-7751
Email:Samuel.Bettwy@usdoj.Gov
Sarah B. Fabian
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
U.S. Department of Justice
Office Of Immigration Litigation
P. O. Box 868
Ben Franklin Station
Washington , DC 20044
USA
202-532-4824
Email:Sarah.B.Fabian@usdoj.Gov
Scott Grant Stewart
ATTORNEY TO BE NOTICED
U. S. Department of Justice
950 Pennsylvania Avenue Nw
Washington , DC 20530
USA
202-307-6482
Email:Scott.G.Stewart@usdoj.Gov
Michael Wishnie, et Al., Amici Curiae
Amicus
Michael Shipley
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
Kirkland & Ellis, LLP
333 South Hope Street
Los Angeles , CA 90071
USA
213-680-8222
Fax: 213-380-8500
Email:Michael.Shipley@kirkland.Com
Children's Rights., Inc., et Al., Amici Curiae
Amicus
Summer J Wynn
LEAD ATTORNEY;ATTORNEY TO BE NOTICED
Cooley Godward Kronish
4401 Eastgate Mall
San Diego , CA 92121-9109
USA
(858) 550-6030
Fax: (858) 550-6420
Email:Swynn@cooley.Com
Date
#
02/26/2018
1
Proceeding Text
Source
PETITION for Writ of Habeas Corpus and Complaint for Declaratory and
Injunctive Relief against Greg Archambeault, Alex Azar, L. Francis Cissna,
Fred Figueroa, Pete Flores, Joseph Greene, Thomas Homan, Scott Lloyd,
Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement,
Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration
Services, U.S. Customs and Border Protection, U.S. Department of Health
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and Human Services, U.S. Department of Homeland Security, U.S.
Immigration and Customs Enforcement ( Filing fee $ 400 receipt number
0974-10950244.), filed by Ms. L. (Attachments: # 1 Civil Cover Sheet)The
new case number is 3:18-cv-428-DMS-MDD. Judge Dana M. Sabraw and
Magistrate Judge Mitchell D. Dembin are assigned to the case. (Vakili,
Bardis)(tcf)(jrd) (Entered: 02/26/2018)
02/26/2018
2
Summons Issued. Counsel receiving this notice electronically should print
this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR
4.1. (tcf)(jrd) (Entered: 02/26/2018)
02/27/2018
3
MOTION to File Complaint Using Pseudonym (Vakili, Bardis). Modified on
2/28/2018 - No Proof of Service. QC Email sent to file Proof of Service
(jah). Modified on 3/7/2018 - Corrected motion event (jah). (Entered:
02/27/2018)
02/27/2018
4
SEALED LODGED Proposed Document re: 3 MOTION to File Documents
Under Seal. Document to be filed by Clerk if Motion to Seal is granted.
(Vakili, Bardis). (jah). (Entered: 02/27/2018)
02/27/2018
5
SUMMONS Returned Executed by Ms. L.. Greg Archambeault, Alex Azar, L.
Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas
Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of
Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship
and Immigration Services, U.S. Customs and Border Protection, U.S.
Department of Health and Human Services, U.S. Department of Homeland
Security, U.S. Immigration and Customs Enforcement served. (Vakili,
Bardis) (aef). (Entered: 02/27/2018)
02/27/2018
6
CERTIFICATE OF SERVICE by Ms. L. re 3 MOTION to File Documents Under
Seal, 4 Sealed Lodged Proposed Document (Vakili, Bardis) (aef). (Entered:
02/27/2018)
02/28/2018
7
Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number
0974-10963954.)(Application to be reviewed by Clerk.) (Rabinovitz, Judy)
(jrd) (Entered: 02/28/2018)
02/28/2018
8
PRO HAC APPROVED: Judy Rabinovitz appearing for Petitioner Ms. L. (no
document attached) (ajs) (Entered: 02/28/2018)
02/28/2018
9
Request to Appear Pro Hac Vice, No payment Submitted. (Application to
be reviewed by Clerk.) (Gelernt, Lee) (Entered: 02/28/2018)
02/28/2018
10
PRO HAC APPROVED: Lee Gelernt appearing for Petitioner Ms. L. (no
document attached) (jrd) (Entered: 02/28/2018)
02/28/2018
11
Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number
0974-10964160.)(Application to be reviewed by Clerk.) (Balakrishnan,
Anand)(jrd) (Entered: 02/28/2018)
02/28/2018
12
PRO HAC APPROVED: Anand Venkata Balakrishnan appearing for Petitioner
Ms. L. (no document attached) (jrd) (Entered: 02/28/2018)
03/02/2018
13
MOTION for Permanent Injunction by Ms. L.. (Attachments: # 1 Memo of
Points and Authorities Memorandum in Support of Motion for Preliminary
Injunction and Declarations)(Gelernt, Lee) (aef). (Entered: 03/02/2018)
03/02/2018
14
MOTION to Expedite Preliminary Injunction Schedule by Ms. L..
(Attachments: # 1 Memo of Points and Authorities Memorandum in
Support of Motion to Expedite)(Gelernt, Lee) (aef). (Entered: 03/02/2018)
03/02/2018
15
MOTION to File Documents Under Seal (Gelernt, Lee). (jah). (Entered:
03/02/2018)
03/02/2018
16
SEALED LODGED Proposed Document re: 15 MOTION to File Documents
Under Seal. Document to be filed by Clerk if Motion to Seal is granted.
(Gelernt, Lee). (jah). (Entered: 03/02/2018)
03/02/2018
17
MOTION for Leave to File Brief by Amicus Curiae in Support of Plaintiff's
Habeas Corpus Petition and Complaint for Declaratory Injunctive Relief by
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Children's Rights, Inc.. (Attachments: # 1 Memo of Points and Authorities,
# 2 Declaration of Linh Nguyen, # 3 Exhibit A to Declaration, # 4 Exhibit B
to Declaration, # 5 Exhibit C to Declaration, # 6 Exhibit D to Declaration,
# 7 Exhibit E to Declaration, # 8 Exhibit F to Declaration, # 9 Exhibit G to
Declaration, # 10 Exhibit H to Declaration, # 11 Exhibit I to Declaration, #
12 Exhibit J to Declaration, # 13 Exhibit K to Declaration, # 14 Exhibit L to
Declaration, # 15 Exhibit M to Declaration, # 16 Proof of Service)(Wynn,
Summer)Attorney Summer J Wynn added to party Children's Rights, Inc.
(pty:ip) (aef). (Entered: 03/02/2018)
03/02/2018
18
CERTIFICATE OF SERVICE by Ms. L. re 13 MOTION for Permanent
Injunction and Memorandum in Support of Preliminary Injunction (Gelernt,
Lee) (aef). (Entered: 03/02/2018)
03/02/2018
19
CERTIFICATE OF SERVICE by Ms. L. re 14 MOTION to Expedite Preliminary
Injunction Schedule and Memorandum in Support of Motion (Gelernt, Lee)
(aef). (Entered: 03/02/2018)
03/02/2018
20
CERTIFICATE OF SERVICE by Ms. L. re 15 MOTION to File Documents
Under Seal (Gelernt, Lee) (aef). (Entered: 03/02/2018)
03/03/2018
21
Amended MOTION for Preliminary Injunction by Ms. L.. (Attachments: # 1
Memo of Points and Authorities Memorandum in Support of Motion for
Preliminary Injunction and Corrected Exhibits)(Gelernt, Lee) (aef).
(Entered: 03/03/2018)
03/03/2018
22
CERTIFICATE OF SERVICE by Ms. L. re 21 Amended MOTION for
Preliminary Injunction and Memorandum in Support of Preliminary
Injunction (Gelernt, Lee) (aef). (Entered: 03/03/2018)
03/04/2018
23
Amicus Curiae Appearance entered by Michael Shipley on behalf of Michael
Wishnie, et al., amici curiae. (Attachments: # 1 Memo of Points and
Authorities Brief of Scholars of Immigration Law and Constitutional Law as
Amici Curiae in Support of Ms. L.'s Motion for a Preliminary Injunction, # 2
Proof of Service)(Shipley, Michael) (aef). (Entered: 03/04/2018)
03/05/2018
24
NOTICE of Withdrawal of Documents by Ms. L. re 13 MOTION for
Permanent Injunction (Vakili, Bardis) (aef). (Entered: 03/05/2018)
03/05/2018
25
CERTIFICATE OF SERVICE by Ms. L. re 24 Notice (Other) of Withdrawal of
Documents (Vakili, Bardis) (aef). (Entered: 03/05/2018)
03/06/2018
26
ORDER granting Petitioner's 3 Motion to File Complaint Using Pseudonym.
The Petitioner is granted leave to file the Complaint using only the
Petitioner's initial. An unredacted copy of the Complaint will be received as
a restricted document, only available to the parties in this litigation. The
parties will not disclose the unredacted Complaint or Petitioner's true
name to anyone other than parties to the litigation. Signed by Judge Dana
M. Sabraw on 3/6/2018. (jah) (Entered: 03/07/2018)
03/06/2018
27
Unredacted Petition for Writ of Habeas Corpus and Complaint for
Declaratory and Injunctive Relief by Ms. L. re 1 Petition. (jah) (Entered:
03/07/2018)
03/07/2018
28
RESPONSE in Opposition re 14 MOTION to Expedite Preliminary Injunction
Schedule filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete
Flores, Joseph Greene, Thomas Homan, Scott Lloyd, Kevin K. McAleenan,
Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard
Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs
and Border Protection, U.S. Department of Health and Human Services,
U.S. Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Attachments: # 1 Declaration, # 2 Proof of Service)
(Bettwy, Samuel) (aef). (Entered: 03/07/2018)
03/07/2018
29
NOTICE of Appearance by Spencer E. W. Amdur on behalf of Ms. L.
(Amdur, Spencer)Attorney Spencer E. W. Amdur added to party Ms. L.
(pty:pet) (aef). (Entered: 03/07/2018)
03/08/2018
30
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Minute Entry for proceedings held before Judge Dana M. Sabraw:
Telephonic Status Conference held on 3/8/2018. Court to issue order.
(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt,
Bardis Vakili). (Defendant Attorney Samuel Bettwy, Nicole Murley). (no
document attached) (jak) (Entered: 03/08/2018)
03/08/2018
31
ORDER (1) Granting in part and Denying in part 14 Motion to Expedite and
(2) Setting Briefing Schedule and Hearing Date on Motion for Preliminary
Injunction and Motions for Leave to File Amicus Brief. RespondentsDefendants shall provide the results of the DNA testing to PetitionerPlaintiff's counsel and the Court on or before March 14, 2018.
Respondents-Defendants shall file their responses to the motions for
preliminary injunction and to file amicus briefs on or before March 16,
2018. Petitioner-Plaintiff and Amici shall file their reply briefs on or before
March 23, 2018. Absent a finding by theCourt that oral argument is
unnecessary pursuant to Civil Local Rule 7.1(d)(1), the motions will be
heard on March 29, 2018, at 1:30 p.m. Signed by Judge Dana M. Sabraw
on 3/8/2018. (aef) (Entered: 03/08/2018)
03/09/2018
32
AMENDED COMPLAINT for Declaratory and Injunctive Relief with Class
Action Allegations against Greg Archambeault, Alex Azar, L. Francis
Cissna, Pete Flores, Joseph Greene, Thomas Homan, Scott Lloyd, Kevin K.
McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson
Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, U.S. Department of Health and Human
Services, U.S. Department of Homeland Security, U.S. Immigration and
Customs Enforcement, Hector A. Mancha Jr., Adrian P. Macias, Francis M.
Jackson, filed by Ms. L., Ms. C..New Summons Requested. (Gelernt, Lee)
(aef). (Entered: 03/09/2018)
03/09/2018
33
MOTION to File Documents Under Seal (Gelernt, Lee). (jah). (Entered:
03/09/2018)
03/09/2018
34
SEALED LODGED Proposed Document re: 33 MOTION to File Documents
Under Seal. Document to be filed by Clerk if Motion to Seal is granted.
(Gelernt, Lee). (jah). (Entered: 03/09/2018)
03/09/2018
35
***DOCUMENT STRICKEN PER ECF 41 *** - MOTION to Certify Class by
Ms. C., Ms. L.. (Attachments: # 1 Memo of Points and Authorities
Memorandum in Support of Motion for Class Certification and Exhibits)
(Gelernt, Lee) (Main Document 35 replaced on 3/9/2018) (aef). Modified
on 3/9/2018 to strike document; motion termed (aef). (Entered:
03/09/2018)
03/09/2018
36
MOTION to File Documents Under Seal (Gelernt, Lee). (jah). (Entered:
03/09/2018)
03/09/2018
37
SEALED LODGED Proposed Document re: 36 MOTION to File Documents
Under Seal. Document to be filed by Clerk if Motion to Seal is granted.
(Gelernt, Lee). (jah). (Entered: 03/09/2018)
03/09/2018
38
CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 33 MOTION to File
Documents Under Seal, 34 Sealed Lodged Proposed Document (Gelernt,
Lee) (aef). (Entered: 03/09/2018)
03/09/2018
39
CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 35 MOTION to Certify Class
and Memorandum in Support of Motion (Gelernt, Lee) (aef). (Entered:
03/09/2018)
03/09/2018
40
CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 36 MOTION to File
Documents Under Seal, 37 Sealed Lodged Proposed Document (Gelernt,
Lee) (aef). (Entered: 03/09/2018)
03/09/2018
41
Notice of Document Discrepancies and Order Thereon by Judge Dana M.
Sabraw Rejecting re 35 Motion to Certify Class , from Petitioners Ms. C.,
Ms. L. Non-compliance with local rule(s), Civil Local Rule 7.1.b. Counsel
must obtain a hearing date from chambers prior to filing motions. IT IS
HEREBY ORDERED: The document is rejected. It is ordered that the Clerk
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STRIKE the document from the record, and serve a copy of this order on
all parties. Signed by Judge Dana M. Sabraw on 3/9/2018.(aef) (Entered:
03/09/2018)
03/09/2018
42
MOTION to Certify Class by Ms. C., Ms. L.. (Attachments: # 1 Memo of
Points and Authorities Memorandum in Support of Motion for Class
Certification and Exhibits)(Gelernt, Lee) (aef). (Entered: 03/09/2018)
03/12/2018
43
Summons Issued re 32 Amended Complaint. Counsel receiving this notice
electronically should print this summons and serve it in accordance with
Rule 4, Fed.R.Civ.P and LR 4.1. (aef) (Entered: 03/12/2018)
03/12/2018
44
NOTICE of DNA Results by Alex Azar, Scott Lloyd, Office of Refugee
Resettlement, U.S. Department of Health and Human Services re 31 Order
on Motion to Expedite, (Attachments: # 1 Proof of Service)(Bettwy,
Samuel)Attorney Samuel William Bettwy added to party Alex Azar
(pty:res), Attorney Samuel William Bettwy added to party Scott Lloyd
(pty:res), Attorney Samuel William Bettwy added to party Office of
Refugee Resettlement(pty:res), Attorney Samuel William Bettwy added to
party U.S. Department of Health and Human Services(pty:res) (aef).
(Entered: 03/12/2018)
03/16/2018
45
NON Opposition re 17 MOTION for Leave to File Brief by Amicus Curiae in
Support of Plaintiff's Habeas Corpus Petition and Complaint for Declaratory
Injunctive Relief filed by Greg Archambeault, Alex Azar, L. Francis Cissna,
Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott
Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan,
Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard
Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs
and Border Protection, U.S. Department of Health and Human Services,
U.S. Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Attachments: # 1 Proof of Service)(Bettwy, Samuel) (aef).
(Entered: 03/16/2018)
03/16/2018
46
RESPONSE in Opposition re 21 Amended MOTION for Preliminary
Injunction filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete
Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd,
Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen
Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions,
III, U.S. Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Attachments: # 1 Declaration Ortiz, # 2 Declaration
Banzon, # 3 Proof of Service)(Bettwy, Samuel) (aef). (Entered:
03/16/2018)
03/16/2018
47
MOTION to File Documents Under Seal (With attachments)(Bettwy,
Samuel) QC mailer sent re missing proposed document (jjg). (Entered:
03/16/2018)
03/19/2018
48
MOTION for Preliminary Injunction for Classwide Relief by Ms. C., Ms. L..
(Attachments: # 1 Memo of Points and Authorities in Support of Classwide
Preliminary Injunction and Exhibits)(Gelernt, Lee) (aef). (Entered:
03/19/2018)
03/19/2018
49
STATUS REPORT by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete
Flores, Joseph Greene, Thomas Homan, Scott Lloyd, Kevin K. McAleenan,
Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard
Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs
and Border Protection, U.S. Department of Health and Human Services,
U.S. Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Attachments: # 1 Proof of Service)(Bettwy, Samuel) (aef).
(Entered: 03/19/2018)
03/19/2018
50
SEALED LODGED Proposed Document re: 47 MOTION to File Documents
Under Seal. Document to be filed by Clerk if Motion to Seal is granted.
(With attachments)(Bettwy, Samuel) (jjg). (Entered: 03/19/2018)
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03/21/2018
51
Joint MOTION for Hearing (reset hearing date & set briefing
schedule) by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores,
Joseph Greene, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen
Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions,
III, U.S. Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Attachments: # 1 Proof of Service)(Bettwy, Samuel) (aef).
(Entered: 03/21/2018)
03/22/2018
52
ORDER (1) Granting 51 Joint Motion to Reset Hearing Date and Set
Briefing Schedule and (2) Denying as Moot 21 Motion for Preliminary
Injunction and Vacating Hearing Date Thereon. Signed by Judge Dana M.
Sabraw on 3/22/2018. (aef) (Entered: 03/22/2018)
03/23/2018
53
ORDER Granting 17 , 23 Motions for Leave to File Amicus Briefs. Signed by
Judge Dana M. Sabraw on 3/22/2018. (aef) (Entered: 03/23/2018)
03/23/2018
54
NOTICE of Appearance by Sarah B. Fabian on behalf of Greg
Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene,
Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office
of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S.
Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement (Fabian, Sarah)Attorney Sarah B. Fabian added to party Greg
Archambeault(pty:res), Attorney Sarah B. Fabian added to party Alex Azar
(pty:res), Attorney Sarah B. Fabian added to party L. Francis Cissna
(pty:res), Attorney Sarah B. Fabian added to party Pete Flores(pty:res),
Attorney Sarah B. Fabian added to party Joseph Greene(pty:res), Attorney
Sarah B. Fabian added to party Thomas Homan(pty:res), Attorney Sarah
B. Fabian added to party Scott Lloyd(pty:res), Attorney Sarah B. Fabian
added to party Kevin K. McAleenan(pty:res), Attorney Sarah B. Fabian
added to party Kirstjen Nielsen(pty:res), Attorney Sarah B. Fabian added
to party Office of Refugee Resettlement(pty:res), Attorney Sarah B.
Fabian added to party Jefferson Beauregard Sessions, III(pty:res),
Attorney Sarah B. Fabian added to party U.S. Citizenship and Immigration
Services(pty:res), Attorney Sarah B. Fabian added to party U.S. Customs
and Border Protection(pty:res), Attorney Sarah B. Fabian added to party
U.S. Department of Health and Human Services(pty:res), Attorney Sarah
B. Fabian added to party U.S. Department of Homeland Security(pty:res),
Attorney Sarah B. Fabian added to party U.S. Immigration and Customs
Enforcement(pty:res) (jpp). (Entered: 03/23/2018)
03/27/2018
55
Page 23 of 30
NOTICE of Appearance by Nicole N. Murley on behalf of Greg
Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene,
Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office
of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S.
Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement (Murley, Nicole)Attorney Nicole N. Murley added to party
Greg Archambeault(pty:res), Attorney Nicole N. Murley added to party
Alex Azar(pty:res), Attorney Nicole N. Murley added to party L. Francis
Cissna(pty:res), Attorney Nicole N. Murley added to party Pete Flores
(pty:res), Attorney Nicole N. Murley added to party Joseph Greene
(pty:res), Attorney Nicole N. Murley added to party Thomas Homan
(pty:res), Attorney Nicole N. Murley added to party Scott Lloyd(pty:res),
Attorney Nicole N. Murley added to party Kevin K. McAleenan(pty:res),
Attorney Nicole N. Murley added to party Kirstjen Nielsen(pty:res),
Attorney Nicole N. Murley added to party Office of Refugee Resettlement
(pty:res), Attorney Nicole N. Murley added to party Jefferson Beauregard
Sessions, III(pty:res), Attorney Nicole N. Murley added to party U.S.
Citizenship and Immigration Services(pty:res), Attorney Nicole N. Murley
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added to party U.S. Customs and Border Protection(pty:res), Attorney
Nicole N. Murley added to party U.S. Department of Health and Human
Services(pty:res), Attorney Nicole N. Murley added to party U.S.
Department of Homeland Security(pty:res), Attorney Nicole N. Murley
added to party U.S. Immigration and Customs Enforcement(pty:res) (aef).
(Entered: 03/27/2018)
04/06/2018
56
MOTION to Dismiss for Lack of Jurisdiction and Lack of Venue, MOTION to
Dismiss for Failure to State a Claim by Greg Archambeault, Alex Azar, L.
Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M.
Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K.
McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson
Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, U.S. Department of Health and Human
Services, U.S. Department of Homeland Security, U.S. Immigration and
Customs Enforcement. (Attachments: # 1 Memo of Points and Authorities)
(Fabian, Sarah)Attorney Sarah B. Fabian added to party Francis M.
Jackson(pty:res), Attorney Sarah B. Fabian added to party Adrian P.
Macias(pty:res), Attorney Sarah B. Fabian added to party Hector A.
Mancha Jr.(pty:res) (aef). (Entered: 04/06/2018)
04/20/2018
57
RESPONSE in Opposition re 48 MOTION for Preliminary Injunction for
Classwide Relief filed by Greg Archambeault, Alex Azar, L. Francis Cissna,
Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott
Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan,
Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard
Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs
and Border Protection, U.S. Department of Health and Human Services,
U.S. Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4
Exhibit)(Fabian, Sarah) (aef). (Entered: 04/20/2018)
04/20/2018
58
RESPONSE in Opposition re 56 MOTION to Dismiss for Lack of Jurisdiction
and Lack of Venue MOTION to Dismiss for Failure to State a Claim filed by
Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered: 04/20/2018)
04/20/2018
59
RESPONSE in Opposition re 42 MOTION to Certify Class filed by Greg
Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores,
Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P.
Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office
of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S.
Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Murley, Nicole)(aef). (Entered: 04/20/2018)
04/25/2018
60
ORDER Granting Motion to File Amended Complaint Using Pseudonym. It is
ORDERED that the Petitioners-Plaintiffs are granted leave to file the
Amended Complaint using only the Petitioner-Plaintiff's initial. Signed by
Judge Dana M. Sabraw on 4/24/2018.(aef) (Entered: 04/26/2018)
04/27/2018
61
REPLY to Response to Motion re 56 MOTION to Dismiss for Lack of
Jurisdiction and Lack of Venue MOTION to Dismiss for Failure to State a
Claim filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete
Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd,
Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen
Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions,
III, U.S. Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Fabian, Sarah) (aef). (Entered: 04/27/2018)
04/27/2018
62
REPLY to Response to Motion re 42 MOTION to Certify Class filed by Ms.
C., Ms. L.. (Gelernt, Lee)(aef). (Entered: 04/27/2018)
04/27/2018
63
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REPLY to Response to Motion re 48 MOTION for Preliminary Injunction for
Classwide Relief filed by Ms. C., Ms. L.. (Gelernt, Lee) (aef). (Entered:
04/27/2018)
04/27/2018
64
MOTION to File Documents Under Seal (Gelernt, Lee) (aef). (Entered:
04/27/2018)
04/27/2018
65
SEALED LODGED Proposed Document re: 64 MOTION to File Documents
Under Seal. Document to be filed by Clerk if Motion to Seal is granted.
(Gelernt, Lee)(aef). (Entered: 04/27/2018)
04/27/2018
66
CERTIFICATE OF SERVICE by Ms. C., Ms. L. re 64 MOTION to File
Documents Under Seal, 65 Sealed Lodged Proposed Document (Gelernt,
Lee) (aef). (Entered: 04/27/2018)
05/02/2018
67
SUMMONS Returned Executed by Ms. L.. Greg Archambeault, Alex Azar, L.
Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas
Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of
Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship
and Immigration Services, U.S. Customs and Border Protection, U.S.
Department of Health and Human Services, U.S. Department of Homeland
Security, U.S. Immigration and Customs Enforcement served. (Gelernt,
Lee)(aef). (Entered: 05/02/2018)
05/02/2018
68
SUMMONS Returned Executed by Ms. L., Ms. C.. Greg Archambeault, Alex
Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan,
Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr.,
Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement,
Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration
Services, U.S. Customs and Border Protection, U.S. Department of Health
and Human Services, U.S. Department of Homeland Security, U.S.
Immigration and Customs Enforcement served. (Gelernt, Lee) (aef).
(Entered: 05/02/2018)
05/04/2018
69
Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion
Hearing held on 5/4/2018 re 42 MOTION to Certify Class filed by Ms. C.,
Ms. L., 48 MOTION for Preliminary Injunction for Classwide Relief filed by
Ms. C., Ms. L. Court to issue order. (Court Reporter/ECR Lee Ann Pence).
(Plaintiff Attorney Anana Balakrishnan, Lee Gelernt, Bardis Vakili).
(Defendant Attorney Sara Fabian, Nicole Murley). (no document attached)
(jak) (Entered: 05/04/2018)
05/09/2018
70
NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on
5/4/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee
Ann Pence. Transcript may be viewed at the court public terminal or
purchased through the Court Reporter/Transcriber before the deadline for
Release of Transcript Restriction. After that date it may be obtained
through PACER or the Court Reporter/Transcriber. If redaction is
necessary, parties have seven calendar days from the file date of the
Transcript to E-File the Notice of Intent to Request Redaction. The
following deadlines would also apply if requesting redaction: Redaction
Request Statement due to Court Reporter/Transcriber 5/30/2018.
Redacted Transcript Deadline set for 6/11/2018. Release of Transcript
Restriction set for 8/7/2018. (akr) (Entered: 05/09/2018)
06/06/2018
71
ORDER Granting in part and Denying in part 56 Defendants' Motion to
Dismiss. The Court grants in part and denies in part Defendants' motion to
dismiss. Specifically, the Court grants Defendants' motion to dismiss
Plaintiffs' claims under the APA and the Asylum Statute, and denies
Defendants' motion to dismiss Plaintiffs' due process claim. Although
Plaintiffs did not request leave to amend in the event any portion of
Defendants' motion was granted, the Court grants Plaintiffs leave to file a
Second Amended Complaint that cures the pleading deficiencies set out
above. If Plaintiffs wish to do so, they shall file their Second Amended
Complaint on or before July 3, 2018. Signed by Judge Dana M. Sabraw on
6/6/2018. (aef) (Entered: 06/06/2018)
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06/08/2018
72
NOTICE of Appearance by Stephen B. Kang on behalf of Ms. C., Ms. L.
(Kang, Stephen)Attorney Stephen B. Kang added to party Ms. C.(pty:pet),
Attorney Stephen B. Kang added to party Ms. L.(pty:pet) (aef). (Entered:
06/08/2018)
06/20/2018
73
ORDER Setting Status Conference. In light of the Executive Order issued
today, June 20, 2018, entitled "Affording Congress an Opportunity to
Address Family Separation," a telephonic status conference shall be held
on June 22, 2018, at 12:00 p.m. Counsel for Defendants shall organize
and initiate the call to the Court. Signed by Judge Dana M. Sabraw on
6/20/2018.(aef) (Entered: 06/20/2018)
06/21/2018
74
NOTICE of Dial-In Information. For purposes of the telephonic status
conference scheduled for June 22, 2018, at 12:00 p.m., the Court has set
up a dial in number for counsel and any members of the news media that
wish to attend. This number is for counsel and media only, 877-873-8018.
(aef) (Entered: 06/22/2018)
06/22/2018
75
Minute Entry for proceedings held before Judge Dana M. Sabraw:
Telephonic Status Conference held on 6/22/2018. Plaintiff to file additional
briefing by 6/25/2018. Defense to file response by 6/27/2018 4:30pm
PST. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt,
Vakili Bardis). (Defendant Attorney Sarah Fabian, Samuel Bettwy). (no
document attached) (jak) (Entered: 06/22/2018)
06/24/2018
76
ORDER Amending Briefing Schedule. In light of the urgent nature of the
motions currently pending before the Court, the Court finds good cause to
advance the deadline for Defendants' supplemental brief. Accordingly,
Defendants shall file their supplemental brief on or before June 26, 2018,
at 9:00 a.m. Pacific Time. Signed by Judge Dana M. Sabraw on
6/24/2018.(aef) (Entered: 06/25/2018)
06/25/2018
77
NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status
Conference) held on 6/22/2018, before Judge Dana M. Sabraw. Court
Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the
court public terminal or purchased through the Court Reporter/Transcriber
before the deadline for Release of Transcript Restriction. After that date it
may be obtained through PACER or the Court Reporter/Transcriber. If
redaction is necessary, parties have seven calendar days from the file date
of the Transcript to E-File the Notice of Intent to Request Redaction. The
following deadlines would also apply if requesting redaction: Redaction
Request Statement due to Court Reporter/Transcriber 7/16/2018.
Redacted Transcript Deadline set for 7/26/2018. Release of Transcript
Restriction set for 9/24/2018. (akr) (Entered: 06/25/2018)
06/25/2018
78
SUPPLEMENTAL BRIEFING by Petitioners Ms. C., Ms. L. re 48 MOTION for
Preliminary Injunction for Classwide Relief and Additional Evidence.
(Gelernt, Lee) (aef). (Entered: 06/25/2018)
06/26/2018
79
RESPONSE in Opposition re 48 MOTION for Preliminary Injunction for
Classwide Relief Supplemental Brief filed by Greg Archambeault, Alex
Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan,
Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr.,
Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement,
Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration
Services, U.S. Customs and Border Protection, U.S. Department of Health
and Human Services, U.S. Department of Homeland Security, U.S.
Immigration and Customs Enforcement. (Attachments: # 1 Proof of
Service)(Fabian, Sarah) (aef). (Entered: 06/26/2018)
06/26/2018
80
Page 26 of 30
DECLARATION re 79 Response in Opposition to Motion,, by Respondents
Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph
Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P.
Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office
of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S.
Citizenship and Immigration Services, U.S. Customs and Border
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Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Attachments: # 1 Declaration)(Fabian, Sarah) (aef).
(Entered: 06/26/2018)
06/26/2018
81
REPLY - Other re 79 Response in Opposition to Motion,, filed by Ms. C.,
Ms. L.. (Gelernt, Lee) (aef). (Entered: 06/26/2018)
06/26/2018
82
ORDER Granting In Part 42 Plaintiffs' Motion for Class Certification.
Plaintiffs' motion for class certification is granted in part as to Plaintiffs'
substantive due process claim. Plaintiffs are appointed as Class
Representatives, and Counsel from the ACLU Immigrants' Rights Project
and the ACLU of San Diego and Imperial Counties are appointed as
counsel for this Class pursuant to Federal Rule of Civil Procedure 23(g).
Signed by Judge Dana M. Sabraw on 6/26/2018. (aef) (Entered:
06/26/2018)
06/26/2018
83
ORDER Granting 48 Plaintiffs' Motion for Classwide Preliminary Injunction.
The Court hereby GRANTS Plaintiffs' motion for classwide preliminary
injunction. A status conference will be held on July 6, 2018, at 12:00
noon. Signed by Judge Dana M. Sabraw on 6/26/2018. (aef) (Entered:
06/26/2018)
07/02/2018
84
NOTICE of Dial-In Information. For purposes of the telephonic status
conference scheduled for 7/6/2018 at 12:00 p.m., the Court has set up a
dial in number for counsel and any members of the news media that wish
to attend. (jdt) (Entered: 07/02/2018)
07/03/2018
85
SECOND AMENDED COMPLAINT against Greg Archambeault, Alex Azar, L.
Francis Cissna, Fred Figueroa, Pete Flores, Joseph Greene, Thomas
Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A.
Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee
Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and
Immigration Services, U.S. Customs and Border Protection, U.S.
Department of Health and Human Services, U.S. Department of Homeland
Security, U.S. Immigration and Customs Enforcement, filed by Ms. L., Ms.
C. (Gelernt, Lee) (aef). (Entered: 07/03/2018)
07/05/2018
86
NOTICE Regarding Compliance by Greg Archambeault, Alex Azar, L.
Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M.
Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K.
McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson
Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, U.S. Department of Health and Human
Services, U.S. Department of Homeland Security, U.S. Immigration and
Customs Enforcement (Attachments: # 1 Declaration, # 2 Exhibit, # 3
Exhibit)(Fabian, Sarah) (jpp). (Entered: 07/05/2018)
07/06/2018
87
NOTICE of Appearance by Scott Grant Stewart on behalf of Greg
Archambeault, Alex Azar, L. Francis Cissna, Fred Figueroa, Pete Flores,
Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P.
Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office
of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S.
Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement (Stewart, Scott)Attorney Scott Grant Stewart added to party
Greg Archambeault(pty:res), Attorney Scott Grant Stewart added to party
Alex Azar(pty:res), Attorney Scott Grant Stewart added to party L. Francis
Cissna(pty:res), Attorney Scott Grant Stewart added to party Fred
Figueroa(pty:res), Attorney Scott Grant Stewart added to party Pete
Flores(pty:res), Attorney Scott Grant Stewart added to party Joseph
Greene(pty:res), Attorney Scott Grant Stewart added to party Thomas
Homan(pty:res), Attorney Scott Grant Stewart added to party Francis M.
Jackson(pty:res), Attorney Scott Grant Stewart added to party Scott Lloyd
(pty:res), Attorney Scott Grant Stewart added to party Adrian P. Macias
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(pty:res), Attorney Scott Grant Stewart added to party Hector A. Mancha
Jr.(pty:res), Attorney Scott Grant Stewart added to party Kevin K.
McAleenan(pty:res), Attorney Scott Grant Stewart added to party Kirstjen
Nielsen(pty:res), Attorney Scott Grant Stewart added to party Office of
Refugee Resettlement(pty:res), Attorney Scott Grant Stewart added to
party Jefferson Beauregard Sessions, III(pty:res), Attorney Scott Grant
Stewart added to party U.S. Citizenship and Immigration Services
(pty:res), Attorney Scott Grant Stewart added to party U.S. Customs and
Border Protection(pty:res), Attorney Scott Grant Stewart added to party
U.S. Department of Health and Human Services(pty:res), Attorney Scott
Grant Stewart added to party U.S. Department of Homeland Security
(pty:res), Attorney Scott Grant Stewart added to party U.S. Immigration
and Customs Enforcement(pty:res) (aef). (Entered: 07/06/2018)
07/06/2018
88
DECLARATION re 86 Notice (Other),, ICE Declaration by Respondents
Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph
Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P.
Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office
of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S.
Citizenship and Immigration Services, U.S. Customs and Border
Protection, U.S. Department of Health and Human Services, U.S.
Department of Homeland Security, U.S. Immigration and Customs
Enforcement. (Fabian, Sarah) (aef). (Entered: 07/06/2018)
07/06/2018
89
Minute Entry for proceedings held before Judge Dana M. Sabraw: Status
Conference held on 7/6/2018. Status Conference set for 7/9/2018 10:00
AM in Courtroom 13A before Judge Dana M. Sabraw. (Court Reporter/ECR
Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Bardis Vakili, Anand
Balakrishnan). (Defendant Attorney Sarah Fabian, Scott Stewart). (no
document attached) (jak) (Entered: 07/06/2018)
07/06/2018
91
ORDER Setting Further Status Conference. A Status Conference is set for
7/9/2018 at 10:00 AM before Judge Dana M. Sabraw. Signed by Judge
Dana M. Sabraw on 7/6/2018.(aef) (Entered: 07/09/2018)
07/08/2018
90
Joint MOTION for Protective Order by Greg Archambeault, Alex Azar, L.
Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M.
Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K.
McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson
Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, U.S. Department of Health and Human
Services, U.S. Department of Homeland Security, U.S. Immigration and
Customs Enforcement. (Fabian, Sarah) (aef). (Entered: 07/08/2018)
07/09/2018
92
PROTECTIVE ORDER. (ECF 90 ) Signed by Judge Dana M. Sabraw on
7/8/2018. (aef) (Entered: 07/09/2018)
07/09/2018
93
NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on
7/6/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee
Ann Pence. Transcript may be viewed at the court public terminal or
purchased through the Court Reporter/Transcriber before the deadline for
Release of Transcript Restriction. After that date it may be obtained
through PACER or the Court Reporter/Transcriber. If redaction is
necessary, parties have seven calendar days from the file date of the
Transcript to E-File the Notice of Intent to Request Redaction. The
following deadlines would also apply if requesting redaction: Redaction
Request Statement due to Court Reporter/Transcriber 7/30/2018.
Redacted Transcript Deadline set for 8/9/2018. Release of Transcript
Restriction set for 10/9/2018. (akr) (Entered: 07/09/2018)
07/09/2018
94
Minute Entry for proceedings held before Judge Dana M. Sabraw: Status
Conference held on 7/9/2018. (Further Status Conference set for
7/10/2018 11:00 AM in Courtroom 13A before Judge Dana M. Sabraw.)
(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt).
(Defendant Attorney Sarah Fabian). (no document attached) (jak)
(Entered: 07/09/2018)
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07/09/2018
95
ORDER Following Status Conference. A Status Conference is set for
7/10/2018 at 11:00 AM before Judge Dana M. Sabraw. Signed by Judge
Dana M. Sabraw on 7/9/2018.(aef) (Entered: 07/09/2018)
07/09/2018
96
NOTICE Joint Notice of Parties Re Process for Release by Greg
Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene,
Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector
A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee
Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and
Immigration Services, U.S. Customs and Border Protection, U.S.
Department of Health and Human Services, U.S. Department of Homeland
Security, U.S. Immigration and Customs Enforcement (Fabian, Sarah)
(Entered: 07/09/2018)
07/09/2018
97
NOTICE Joint Notice of Parties re Notice to Class Members by Ms. C., Ms.
L. (Attachments: # 1 Exhibit Government's Version, # 2 Exhibit Plaintiffs'
Version)(Gelernt, Lee) (Entered: 07/09/2018)
07/09/2018
98
DECLARATION of Michelle Brane and Jennifer Podkul by Petitioners Ms. C.,
Ms. L.. (Gelernt, Lee) (Entered: 07/09/2018)
07/10/2018
99
Page 29 of 30
NOTICE Joint Notice Re Compliance by Greg Archambeault, Alex Azar, L.
Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M.
Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K.
McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson
Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, U.S. Department of Health and Human
Services, U.S. Department of Homeland Security, U.S. Immigration and
Customs Enforcement (Fabian, Sarah) (Entered: 07/10/2018)
07/10/2018 100 Minute Entry for proceedings held before Judge Dana M. Sabraw: Status
Hearing held on 7/10/2018. (Further Status Conference set for 7/13/2018
01:00 PM in Courtroom 13A before Judge Dana M. Sabraw.)(Court
Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Lee Gelernt, Bardis
Vakili, Anand Balakrishnan, Stephen Kang). (Defendant Attorney Sarah
Fabian, Scott Stewart). (no document attached) (jak) (Entered:
07/10/2018)
07/10/2018 101 ORDER Following Status Conference. A follow-up status conference was
held on July 10, 2018. Counsel shall submit a further joint status report to
the Court on or before 3:00 p.m. on July 12, 2018. A further Status
Conference shall be held at 1:00 p.m. on July 13, 2018. Signed by Judge
Dana M. Sabraw on 7/10/2018.(aef) (Entered: 07/10/2018)
07/10/2018 102 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on Events
7/9/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee since last
full update
Ann Pence. Transcript may be viewed at the court public terminal or
purchased through the Court Reporter/Transcriber before the deadline for
Release of Transcript Restriction. After that date it may be obtained
through PACER or the Court Reporter/Transcriber. If redaction is
necessary, parties have seven calendar days from the file date of the
Transcript to E-File the Notice of Intent to Request Redaction. The
following deadlines would also apply if requesting redaction: Redaction
Request Statement due to Court Reporter/Transcriber 7/31/2018.
Redacted Transcript Deadline set for 8/10/2018. Release of Transcript
Restriction set for 10/9/2018. (akr) (Entered: 07/10/2018)
07/10/2018 103 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Conference) held on Events
since last
7/10/2018, before Judge Dana M. Sabraw. Court Reporter/Transcriber:
full update
Lee Ann Pence. Transcript may be viewed at the court public terminal or
purchased through the Court Reporter/Transcriber before the deadline for
Release of Transcript Restriction. After that date it may be obtained
through PACER or the Court Reporter/Transcriber. If redaction is
necessary, parties have seven calendar days from the file date of the
Transcript to E-File the Notice of Intent to Request Redaction. The
following deadlines would also apply if requesting redaction: Redaction
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Request Statement due to Court Reporter/Transcriber 7/31/2018.
Redacted Transcript Deadline set for 8/10/2018. Release of Transcript
Restriction set for 10/9/2018. (akr) (Entered: 07/10/2018)
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Exhibit 2
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 71 Filed 06/06/18 PageID.1329 Page 1 of 25
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6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
Ms. L.; et al.,
Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,
12
13
v.
14
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
U.S Immigration and Customs
Enforcement (“ICE”); et al.,
15
16
Respondents-Defendants.
17
18
This case involves the Government’s alleged practice of separating migrant parents
19
and children held in immigration detention without a showing that the parent is unfit or
20
presents a danger to the minor child. According to Plaintiffs, prior administrations detained
21
migrant families, but did not have a practice of forcibly separating fit parents from their
22
young children. Plaintiffs allege there are reports the Government may soon adopt a formal
23
national policy of separating migrant families, and placing the children in government
24
facilities for “unaccompanied minors” to deter others from coming to the United States.
25
The Government denies it has a family separation policy and concedes such a policy would
26
be “antithetical to the child welfare values” imposed on government actors responsible for
27
the care and custody of migrant children who are separated from their parents as a result of
28
the Government’s enforcement of criminal and immigration law. Instead, the Government
1
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asserts it considers each case on the facts available at the time a placement decision is
2
made, and that when separation occurs, it is the result of the Government taking lawful
3
immigration enforcement and detention actions.
4
Plaintiffs Ms. L. and Ms. C. allege immigration officials separated them from their
5
minor children without determining they were unfit or presented a danger to their children,
6
and that hundreds of other migrant families have been subjected to the same treatment.
7
Plaintiffs, on behalf of themselves and putative class members, allege the conduct at issue
8
violates their due process rights under the Fifth Amendment to the United States
9
Constitution, the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Asylum
10
Statute, 8 U.S.C. § 1158.
11
The Government’s alleged practice has garnered the attention of numerous groups
12
interested in child advocacy and welfare, immigration law and constitutional law, as
13
evidenced by the amicus briefs filed in this case. Whether there is such a practice, and if
14
so, whether that practice is lawful, is not presently before the Court. The only issues
15
presently before the Court are whether this Court has jurisdiction to hear the case, whether
16
this Court is the proper venue for the case, and whether Plaintiffs Ms. L. and Ms. C. have
17
alleged sufficient facts and a sufficient legal basis to state a “plausible claim for relief.”
18
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). As explained below, the Court finds it has
19
jurisdiction over the case and venue is proper in this Court. The Court also finds Plaintiffs
20
have set forth sufficient facts and a sufficient legal basis to state a claim that separation
21
from their children while they are contesting their removal and without a determination
22
they are unfit or present a danger to their children violates due process. The Court further
23
finds that Plaintiffs have failed to state a claim under the APA or the Asylum Statute.
24
I.
25
FACTUAL BACKGROUND
26
Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo. She is
27
Catholic. On November 1, 2017, she and her then 6-year-old daughter S.S. arrived at the
28
San Ysidro Port of Entry seeking asylum based on religious persecution. Ms. L. and her
2
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daughter were detained by immigration officials at the border, and housed together until
2
November 5, 2017, at which time immigration officials “forcibly separated” S.S. from her
3
mother and sent S.S. to Chicago—over a thousand miles away—where “she was housed in
4
a detention facility for ‘unaccompanied’ minors run by the Office of Refugee Resettlement
5
[ORR].” (Am. Compl. ¶ 42.) “When S.S. was taken away from her mother, she was
6
screaming and crying, pleading with guards not to take her away from her mother.” (Id. ¶
7
43.) During their detention and while they were separated, Ms. L. was able to speak with
8
her daughter only “approximately 6 times by phone, never by video.” (Id. ¶ 44.) Each
9
time they spoke, S.S. “was crying and scared.” (Id. ¶ 43.) Ms. L. was “terrified that she
10
would never see her daughter again.” (Id. ¶ 45.)
11
After being separated from her daughter for nearly four months, Ms. L. filed the
12
present case against numerous governmental entities and individual actors.1 Five days after
13
filing the original Complaint, Ms. L. filed a motion for preliminary injunction and motion
14
to expedite hearing of the motion. Three days later, Ms. L. was “paroled,” i.e., released,
15
from ICE detention. (See infra n.3 (discussing removal proceedings, asylum and parole)).
16
In response to Ms. L.’s motion to expedite hearing of her motion for preliminary injunction,
17
the Government stated it was attempting to “expeditiously resolve current doubts about
18
whether [Ms. L.] is the mother of S.S. to the satisfaction of [ORR].” (Opp’n to Mot. to
19
Expedite at 1.) That effort involved ORR taking a DNA saliva sample (or swab) from S.S.,
20
which it did on March 7, 2018. On March 8, 2018, the Court held a telephonic status
21
22
23
24
25
26
27
28
Defendants include the U.S. Immigration and Customs Enforcement (“ICE”), U.S.
Department of Homeland Security (“DHS”), U.S. Customs and Border Protection
(“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Department of
Health and Human Services (“HHS”), a non-law enforcement agency, ORR, a sub-agency
of HHS, and a host of individuals, including the Attorney General of the United States.
The Attorney General is named in his official capacity as he has responsibility for the
administration of the immigration laws pursuant to 8 U.S.C. § 1103, oversees the Executive
Office of Immigration Review, is empowered to grant asylum or other relief, and is a legal
custodian of Plaintiffs. (Id. ¶ 24.)
1
3
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conference with counsel, and thereafter ordered the parties to collect a DNA sample from
2
Ms. L. and to complete the DNA testing by March 14, 2018. The testing was completed
3
on March 12, 2018, and established maternity. Four days later, and more than four months
4
after they were separated, S.S. was released to her mother after ORR determined Ms. L.
5
was capable of providing for S.S.’s physical and mental well-being. (See infra n.2
6
(discussing child welfare provisions relating to immigrant children)).
7
While the DNA testing was underway, Ms. L. filed an Amended Complaint that
8
realleges the claims in the original Petition/Complaint with minor modifications, and adds
9
a new Plaintiff, Ms. C. Ms. C. is a citizen of Brazil, and unlike Ms. L., she crossed into
10
the United States with her 14-year-old son J. “between ports of entry[.]” (Mem. of P. &
11
A. in Supp. of Mot. to Dismiss at 5.) Ms. C. and her son were apprehended by U.S. Border
12
Patrol, and Ms. C. explained to the agent they were seeking asylum. (Am. Compl. ¶ 55.)
13
Ms. C. was prosecuted for entering the country illegally, and J. was taken away from her
14
and sent to an ORR facility in Chicago—hundreds of miles away—for “unaccompanied”
15
children. (Id. ¶ 56.) Ms. C. was convicted of misdemeanor illegal entry and served 25
16
days in federal custody. (Id. ¶ 57.) She completed her sentence on September 22, 2017,
17
and was then taken into ICE detention for removal proceedings and consideration of her
18
asylum claim. She was first held at the El Paso Processing Center before being transferred
19
to the West Texas Detention Center. (Id.) Ms. C. was released on bond from ICE detention
20
on April 9, 2018, after the Amended Complaint was filed, but she has yet to be reunited
21
with her son. During the five months she was detained, Ms. C. did not see her son, and
22
they spoke on the phone only “a handful of times[.]” (Id. ¶ 58.) Ms. C. “is desperate” to
23
be reunited with her son, “worries about him constantly and does not know when she will
24
be able to see him.” (Id.) “J. has been having a difficult time emotionally since being
25
separated from his mother.” (Id. ¶ 59.) Indeed, “[e]very day that J. is separated from his
26
mother causes him greater emotional and psychological harm and could potentially lead to
27
permanent emotional trauma.” (Id. ¶ 60.) Plaintiffs allege “[t]he government has no
28
legitimate interest in separating Ms. C. and her child[,]” there has been “no evidence, or
4
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even accusation, that J. was abused or neglected by Ms. C.[,]” and “[t]here is no evidence
2
that Ms. C. is an unfit parent or that she is not acting in the best interests of her child.” (Id.
3
¶¶ 61-63.)
4
5
6
7
8
9
Together, Ms. L. and Ms. C. seek to represent the following nationwide class on all
of their claims for relief:
All adult parents nationwide who (1) are or will be detained in immigration
custody by the Department of Homeland Security, and (2) have a minor child
who is or will be separated from them by DHS and detained in ORR custody,
absent a demonstration in a hearing that the parent is unfit or presents a danger
to the child.
10
(Id. ¶ 65.) In their Amended Complaint, Plaintiffs seek, among other things, a preliminary
11
and permanent injunction preventing Defendants from continuing to separate them and the
12
other class members from their children, and an order requiring Defendants to either
13
“release class members along with their children, or to detain them together in the same
14
facility[.]” (Id. at 12.)
15
Three motions are pending before the Court: Defendants’ motion to dismiss, and
16
Plaintiffs’ motion for class certification and motion for classwide preliminary injunction.
17
These motions came on for hearing on May 4, 2018. Lee Gelernt, Anand Balakrishnan
18
and Bardis Vakili appeared for Plaintiffs, and Sarah Fabian and Nicole Murley appeared
19
for Defendants. This Order addresses Defendants’ motion to dismiss. Plaintiffs’ motions
20
for class certification and preliminary injunction will be addressed in separate orders.
21
II.
22
DISCUSSION
23
Defendants raise a number of arguments in their motion to dismiss. First, they argue
24
Ms. L.’s claims are moot because she has been released from ICE detention and reunited
25
with her daughter. Second, Defendants assert the Court lacks jurisdiction over Ms. C.’s
26
habeas claim and that venue is improper for Ms. C.’s other claims. Third, Defendants claim
27
the Court lacks jurisdiction to review ICE’s decision to detain rather than parole Plaintiffs,
28
and also lacks jurisdiction to review ICE’s decision about where to detain Plaintiffs or to
5
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1
order ICE to detain Plaintiffs in a particular facility. Fourth, Defendants contend separation
2
of Plaintiffs from their children does not violate the Fifth Amendment. Fifth, Defendants
3
argue Plaintiffs have failed to state a claim under the APA. And finally, Defendants assert
4
Plaintiffs have failed to state a claim under the Asylum Act.
5
A.
Mootness
6
Defendants’ first argument in support of their motion to dismiss is that Ms. L.’s
7
claims are moot in light of her release from detention and reunification with her daughter.
8
Plaintiffs disagree that either of these events renders Ms. L.’s claims moot.
9
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for
10
purposes of Article III—‘when the issues presented are no longer live or the parties lack a
11
legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91
12
(2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)) (internal quotation marks
13
omitted). The mootness doctrine is subject to certain exceptions, however. In this case,
14
Plaintiffs invoke the voluntary cessation exception, which provides,
15
that a defendant cannot automatically moot a case simply by ending its
unlawful conduct once sued. City of Mesquite v. Aladdin’s Castle, Inc., 455
U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). Otherwise, a defendant
could engage in unlawful conduct, stop when sued to have the case declared
moot, then pick up where he left off, repeating this cycle until he achieves all
his unlawful ends.
16
17
18
19
20
Id.
21
Defendants argue the voluntary cessation exception does not apply because Ms. L.
22
was released from detention and reunited with her daughter for reasons other than this
23
litigation. Specifically, they assert Ms. L.’s release and reunification with her daughter
24
“occurred through the operation of the applicable laws governing her detention and the
25
custody of S.S.[,]” (Reply in Supp. of Mot. to Dismiss at 1), namely Ms. L.’s parole from
26
///
27
///
28
///
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ICE detention and the release of S.S. in accordance with ORR procedures and the
2
Trafficking Victims Protection and Reauthorization Act (“TVPRA”).2 (Id. at 2.)
3
The Ninth Circuit has held that in order for the voluntary cessation exception to
4
apply, “the voluntary cessation ‘must have arisen because of the litigation.’” Sze v. I.N.S.,
5
153 F.3d 1005, 1008 (9th Cir. 1998) (quoting Public Utilities Comm’n of State of Cal. v.
6
Fed. Energy Regulatory Comm’n, 100 F.3d 1451, 1460 (9th Cir. 1996)). See also ACLU
7
of Mass. v. United States Conf. of Catholic Bishops, 705 F.3d 44, 55 (1st Cir. 2013)
8
(quoting M. Redish, Moore’s Fed. Practice, § 101.99[2]) (“‘The voluntary cessation
9
doctrine does not apply when the voluntary cessation of the challenged activity occurs
10
because of reasons unrelated to the litigation.’”). Here, both sides offer competing
11
explanations for Ms. L.’s parole from detention and reunification with her daughter, with
12
Plaintiffs asserting these actions were the result of “Defendants’ own decision to end” Ms.
13
L.’s separation from her daughter “before this Court could rule[,]” (Opp’n to Mot. to
14
Dismiss at 5), and Defendants arguing to the contrary.
15
Neither party has presented any evidence, however, as to the reason for Ms. L.’s
16
parole from detention and reunification with her daughter. The timing of Ms. L.’s release
17
and reunification with her daughter, both of which occurred after this case was filed and
18
19
20
21
22
23
24
25
26
27
28
The TVPRA, Pub. L. No. 110-457 (Dec. 23, 2008), 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 or legal
guardian in the United States nor a parent or 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).
2
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1
after the Court ordered an expedited DNA test, support Plaintiffs’ assertion. Defendants,
2
meanwhile, have failed to present any evidence to support their assertion that they were
3
simply complying with the statutes, and would have paroled Ms. L. and reunited her with
4
her daughter pursuant to the TVPRA absent this litigation, such as declarations from
5
individuals involved in those decisions who could attest that the decisions were in process
6
prior to this litigation. See ACLU of Mass., 705 F.3d at 55 (finding voluntary cessation
7
exception did not apply where contract at issue “expired according to its terms. HHS did
8
nothing to hasten its expiration, much less do so to terminate litigation; ... Moreover, the
9
expiration date, options, and task order extension were all built into the contract’s terms
10
before this litigation began.”). Defendants also have failed to offer any evidence to explain
11
why DNA testing of Ms. L. and S.S. was not completed during the four months that Ms.
12
L. and S.S. were detained and during which time Ms. L. consistently maintained parentage,
13
but occurred only after the Court ordered it.
14
Because Defendants have not shown that Ms. L. was released from detention and
15
reunited with her daughter for reasons other than this litigation, the Court finds the
16
voluntary cessation exception applies to this case. Applying that exception, Ms. L.’s claims
17
are not moot.
18
B.
Habeas Jurisdiction
19
Defendants’ second argument in support of dismissal is that the Court lacks
20
jurisdiction over Ms. C.’s habeas claim because she did not name the warden of the
21
institution in which she was detained. “[L]ongstanding practice confirms that in habeas
22
challenges to present physical confinement—‘core challenges’—the default rule is that the
23
proper respondent is the warden of the facility where the prisoner is being held, not the
24
Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542
25
U.S. 426, 435 (2004). Here, Ms. C. is not raising a “core challenge.” This is especially so
26
now that she has been released on bond. Rather, her habeas claim, like her other claims, is
27
directed to the continued separation from her child. (See Am. Compl. at 12) (asking the
28
Court to “[o]rder defendants either to release class members along with their children, or
8
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1
to detain them together in the same facility[.]”). Since Ms. C. is not raising a “core
2
challenge,” she is not subject to the default rule set out above. Absent this showing, the
3
Court has jurisdiction over Ms. C.’s habeas claim.
4
C.
Venue
5
Defendants’ third argument in support of dismissal is that this Court is the improper
6
venue for adjudication of Ms. C.’s claims because Ms. C. does not reside in this district nor
7
did the events giving rise to her claim occur in this district. Plaintiffs respond that
8
regardless of Ms. C.’s claims, this is the proper venue for Ms. L.’s claims, and that is
9
sufficient in this putative class case against the Government. Plaintiffs rely on 28 U.S.C.
10
§ 1391(e)(1) for the proposition that if any plaintiff resides in the district in which an action
11
is brought against government entities, venue is proper in that district. Section 1391(e)(1)
12
states:
13
14
15
16
17
18
A civil action in which a defendant is an officer or employee of the United
States or any agency thereof acting in his official capacity or under color of
legal authority, or an agency of the United States, or the United States, may,
except as otherwise provided by law, be brought in any judicial district in
which (A) a defendant in the action resides, (B) a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (C) the plaintiff resides if no real
property is involved in the action.
19
28 U.S.C. § 1391(e)(1). In Sidney Coal Co. v. Soc. Security Admin., 427 F.3d 336 (6th Cir.
20
2005), the court was asked to decide whether the term “the plaintiff” in subsection (C) of
21
this statute referred to only one plaintiff or all plaintiffs. Id. at 344. After reviewing the
22
“plethora of case law interpreting the statute,” the court refused to interpret the statute to
23
require all plaintiffs to reside in the relevant district, finding the statute “contains no
24
requirement that all plaintiffs must reside in the same district.” Id. The court found that to
25
hold otherwise “would substantially limit the statute’s breadth[.]” Id. It also found “[e]ach
26
court faced with the same issue has interpreted ‘the plaintiff’ to mean ‘any plaintiff,’
27
finding that Congress intended to broaden the number of districts in which suits could be
28
brought against government entities.” Id. at 344-45. Ultimately, the court held “that the
9
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1
residency requirement of [28 U.S.C. § 1391(e)(1)(C)] is satisfied if at least one plaintiff
2
resides in the district in which the action has been brought.” Id. at 345-46. This reasoning
3
is persuasive.
4
There is no dispute Ms. L. was resident in this district when the original Complaint
5
was filed. Thus, venue in this Court is proper under 28 U.S.C. § 1391(e)(1)(C).
6
D.
Jurisdiction to Review “Discretionary” Decisions
7
Defendants’ fourth argument in support of dismissal is that this Court lacks
8
jurisdiction to review the Government’s decision to either detain or parole Plaintiffs, and
9
also lacks jurisdiction to review where Plaintiffs will be detained or to order ICE to detain
10
Plaintiffs in a particular facility. Plaintiffs dispute that the Court lacks jurisdiction to
11
review these decisions.
12
As to Defendants’ first argument about the decision to detain or parole, Plaintiffs are
13
not challenging that particular decision. (See Opp’n to Mot. to Dismiss at 12) (stating
14
Amended Complaint “does not seek an injunction ordering Defendants to grant parole;
15
rather, it seeks an injunction to reunite Plaintiffs with their children, ‘either’ by ‘detain[ing]
16
them together in the same facility,’ or by ‘releas[ing] class members along with their
17
children.’”).3 Rather, Plaintiffs are challenging the Government’s practice of separating
18
19
20
21
22
23
24
25
26
27
28
There are sound reasons for not challenging this decision. Individuals in the expedited
removal process who have not been found to have a “credible fear of persecution” for
asylum purposes are subject to mandatory detention. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV).
These individuals may be released only if they are granted parole, i.e., released under
narrowly prescribed circumstances, such as “urgent humanitarian reasons or significant
public benefit[,]” 8 U.S.C. § 1182(d)(5)(A), medical emergency or a “legitimate law
enforcement objective.” 8 C.F.R. § 235.3(b)(2)(iii). Furthermore, an alien who is subject
to expedited removal and who is seeking to establish that he or she has a credible fear of
persecution, is not eligible for release on bond. 8 C.F.R. §§ 235.3(c), 1003.19(h)(2)(i)(B).
If the asylum officer or Immigration Judge (“IJ”) determines that the alien has a credible
fear of persecution, expedited removal proceedings are vacated and the alien is referred for
removal proceedings before an IJ under 8 U.S.C. § 1229a. 8 C.F.R. § 208.30(f). These
aliens may be released from detention through a grant of parole under narrowly prescribed
3
10
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1
minor children from their parents without legitimate reason, irrespective of the
2
Government’s general authority to detain or release. Defendants’ argument, therefore,
3
does not warrant dismissal of Plaintiffs’ claims.
4
Next, Defendants argue the Court lacks jurisdiction to review where Plaintiffs will
5
be detained or to order ICE to detain Plaintiffs in a particular facility. In support of this
6
argument, Defendants rely on 8 U.S.C. § 1252(a)(2)(B)(ii) and 8 U.S.C. § 1231(g)(1).
7
Section 1252(a)(2)(B)(ii) precludes courts from reviewing decisions of the Attorney
8
General or Secretary of DHS if the conduct at issue is specified in the particular statute to
9
be in their discretion. It states:
10
11
12
13
14
15
16
17
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of title 28, United States Code, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, and except as
provided in subparagraph (D), and regardless of whether the judgment,
decision, or action is made in removal proceedings, no court shall have
jurisdiction to review— ...
(ii) any other decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under this title to be in
the discretion of the Attorney General or the Secretary of Homeland Security,
other than the granting of relief under section 208(a).
18
8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). Defendants assert the Attorney General’s
19
decisions about where aliens will be detained falls within this statute. Specifically, they
20
assert that 8 U.S.C. § 1231(g)(1), which provides, “The Attorney General shall arrange for
21
appropriate places of detention for aliens detained pending removal or a decision on
22
removal[,]” id., grants the Attorney General discretion to make those decisions, and under
23
§ 1252(a)(2)(B)(ii), those decisions are not subject to review by the courts.
24
This is not the first time the Government has raised this argument. See Aguilar v.
25
United States Immig. & Customs Enf’t Div. of the Dep’t of Homeland Sec., 510 F.3d 1 (1st
26
27
28
circumstances, such as an “urgent humanitarian reason or significant public benefit.” 8
U.S.C. § 1182(b)(5); 8 C.F.R. § 212.5(b).
11
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1
Cir. 2007). In Aguilar, the court rejected the Government’s “sprawling construction of
2
section 1252(a)(2)(B)(ii)[,]” stating “so broad a reading is not evident from the statute’s
3
text.” Id. at 20. Instead, the court found “section 1231(g)(1) fails to ‘specify’ that
4
individualized transfer decisions are in the Attorney General’s discretion.” Id. The court
5
contrasted the language of section 1231(g)(1) with “other sections of the [Immigration and
6
Nationality Act (“INA”)]” in which that discretion is explicitly provided, specifically 8
7
U.S.C. §§ 1157(c)(1), 1181(a)(9)(B)(v), 1184(c)(6)(F) and 1229b(b)(2)(D). Id. The court
8
also cited to Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), which states “there are no less
9
than thirty-two additional provisions in the very subchapter of the INA referenced by 8
10
U.S.C. § 1252(a)(2)(B)(ii) that make explicit the grant of ‘discretion’ to the Attorney
11
General or the Secretary of Homeland Security[.]” Id. at 97. In light of this authority, the
12
Aguilar court held, “[i]f a statute does not explicitly specify a particular authority as
13
discretionary, section 1252(a)(2)(B)(ii) does not bar judicial review of an ensuing agency
14
action.” 510 F.3d at 20; see also Spencer Enters., Inc. v. United States, 345 F.3d 683, 691
15
(9th Cir. 2003) (stating “the plain language of § 1252(a)(2)(B)(ii) requires that
16
discretionary authority be specified by statute[.]”). Ultimately, the Aguilar court held
17
“section 1252(a)(2)(B)(ii) does not strip the district courts of jurisdiction over substantive
18
due process claims that are collateral to removal proceedings when those claims challenge
19
decisions about the detention and transfer of aliens on family integrity grounds.” 510 F.3d
20
at 21.
21
Defendants do not explain why this reasoning should not apply here. Instead, they
22
rely on a decision from the Ninth Circuit finding the Attorney General has broad discretion
23
in deciding where to house deportable aliens. See Comm. of Cent. Am. Refugees v. I.N.S.,
24
795 F.2d 1434 (9th Cir. 1986).
25
1252(a)(2)(B)(ii), which is the starting point for Defendants’ jurisdiction-stripping
26
argument. Moreover, in Comm. of Cent. Am. Refugees, the Ninth Circuit addressed the
27
///
28
///
That decision, however, predates 8 U.S.C. §
12
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1
merits of the plaintiffs’ claim, which assumes jurisdiction. 795 F.2d at 1437-41.4 Aguilar,
2
by contrast, addresses 8 U.S.C. § 1252(a)(2)(B)(ii), the leading Supreme Court case
3
interpreting that statute, Kucana v. Holder, 558 U.S. 233 (2010), and the other statute
4
forming the basis for Defendants’ argument, 8 U.S.C. § 1231(g)(1). The Aguilar court’s
5
analysis of these statutes is faithful to statutory text and persuasive. This Court, therefore,
6
concludes it has jurisdiction to review the Government’s conduct at issue.5
7
E.
Due Process
8
Next, Defendants argue Plaintiffs have failed to state a claim for violation of their
9
due process rights. In reviewing this argument, the Court is bound to accept all well-
10
pleaded factual allegations in the Amended Complaint as true, construe those allegations
11
“in the light most favorable to the nonmoving party,” Silvas v. E*Trade Mortg. Corp., 514
12
F.3d 1001, 1003 (9th Cir. 2008) (citation omitted), and “then determine whether they
13
plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
14
The parties do not dispute the following bedrock principles. The Constitution
15
protects everyone within the territory of the United States, regardless of citizenship. (Br.
16
of Scholars of Immig. and Const. Law as Amici Curiae at 3, ECF No. 23-1) (citing Yick
17
Wo v. Hopkins, 118 U.S. 356, 368-69(1886)). “Repeatedly and consistently, the Supreme
18
Court and the Ninth Circuit have held that non-citizens physically on U.S. soil have
19
constitutional rights, including the right to due process of law.” (Id. at 4) (citing, among
20
21
22
23
24
25
26
27
28
In Comm. of Cent. Am. Refugees, the Ninth Circuit held that the government’s policy of
transferring unrepresented aliens to remote detention facilities “did not violate the due
process clause or any statutory privilege[,]” and “prudential considerations precluded
interference with the Attorney General’s [exercise of] discretion” in selecting the detention
facilities where aliens are to be detained. 795 F.2d at 1439-40.
5
Even if § 1252(a)(2)(B)(ii) acted as a statutory bar to Plaintiffs’ claims, the Ninth Circuit
has held “decisions that violate the Constitution cannot be ‘discretionary,’ so claims of
constitutional violations are not barred by § 1252(a)(2)(B).” Wong v. United States, 373
F.3d 952, 963 (9th Cir. 2004). Plaintiffs have clearly alleged separation from their children
violated their due process rights. Thus, this rule would apply, and would allow for judicial
review.
4
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1
other cases, Matthews v. Diaz, 426 U.S. 67, 77 (1976) (stating “there ‘are literally millions
2
of aliens within the jurisdiction of the United States’” and “‘the Fifth Amendment . . .
3
protects every one of these persons[.]’”)). “Aliens,” therefore, have substantive due
4
process rights under the Constitution. Id. (collecting cases).6
5
Further, it has long been settled that the liberty interest identified in the Fifth
6
Amendment provides a right to family integrity or to familial association. See U.S. Const.
7
amend. V (stating no person shall “be deprived of life, liberty, or property, without due
8
process of law.”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (stating “the relationship
9
between parent and child is constitutionally protected.”). Indeed, “[t]he liberty interest at
10
issue in this case–the interest of parents in the care, custody, and control of their children–
11
is perhaps the oldest of the fundamental liberty interests recognized by” the Court. Troxel
12
v. Granville, 530 U.S. 57, 65 (2000); see also Rosenbaum v. Washoe Cty., 663 F.3d 1071,
13
1079 (9th Cir. 2011) (“The substantive due process right to family integrity or to familial
14
association is well established.”). In sum, there is no dispute the constitutional right to
15
family integrity applies to aliens like Ms. L. and Ms. C.
16
Rather, the dispute here is twofold: (1) whether the substantive due process right to
17
family integrity applies not to Plaintiffs, generally, but in the particular circumstances
18
alleged; and (2) if so, whether the conduct attributed to the Government violates that right.
19
It bears repeating that at this stage of the case, Plaintiffs need not prove either of these
20
questions should be resolved in their favor. The only issue here is whether Plaintiffs have
21
alleged sufficient facts and a cognizable legal theory giving rise to a “plausible claim for
22
relief.” Iqbal, 556 U.S. at 679. In this context, the Court addresses these two issues in
23
turn.
24
25
26
27
28
At oral argument, Government counsel conceded the point, “The Court: So you would
agree that because these individuals [Ms. L. and Ms. C.] are present in the United States
that substantive due process attaches[?] . . . [Gov’t counsel]: That’s correct[.]” (Rep.’s
Tr. at 4-5, May 9, 2018, ECF No. 70.)
6
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1
2
1.
Does the Constitutional Right to Family Integrity Apply in the Circumstances
Alleged?
3
The constitutional right to family integrity “is entirely judge-made: it does not appear
4
in the text of the Constitution itself.” Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018).
5
Furthermore, the “right to family integrity has been recognized in only a narrow subset of
6
circumstances.” Aguilar, 510 F.3d at 23 (stating alien “petitioners have not demonstrated
7
that this guarantee of substantive due process [the liberty interest in family integrity]
8
encompasses their assertions.”); see also Washington v. Glucksberg, 521 U.S. 702, 720
9
(1997) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)) (noting courts must
10
be “‘reluctant to expand the concept of substantive due process.’”). Plaintiffs, therefore,
11
must show that their generally held constitutional right to family integrity applies in the
12
particular circumstances alleged here.
13
In determining whether the right to family integrity encompasses the circumstances
14
alleged here, it is important to note what Plaintiffs do not challenge. They do not challenge
15
the Government’s initial separation of parent and child when the parent is arrested for
16
violating the nation’s criminal laws. Nor do Plaintiffs challenge the Government’s decision
17
to separate families when there are legitimate questions regarding parentage, fitness, or
18
danger to the child. Nor do they challenge the Government’s powers to deport or detain
19
aliens. What Plaintiffs challenge is the Government’s separation of migrant parents and
20
their minor children when both are held in immigration detention and when there has been
21
no showing the parent is unfit or poses a danger to the child. Plaintiffs assert separation of
22
parents and minor children under such circumstances violates their due process rights.
23
Defendants argue the contours of the right to family integrity are different depending
24
on the circumstances, and that under the circumstances of this case, which involve the
25
Government’s enforcement of criminal and immigration laws, there is no constitutional
26
violation. Specifically, the Government argues that when a parent is detained for removal
27
or criminal prosecution, the minor child becomes “unaccompanied” and must be placed in
28
the “care and custody” of ORR. Separation of the family unit, therefore, is simply a
15
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1
consequence of the lawful detention of the parent. In support of this argument, Defendants
2
rely on a number of cases dealing with immigration detainees and convicts who have been
3
separated from their families without constitutional implication, but those cases are
4
distinguishable from this case. See, e.g., Milan-Rodriguez v. Sessions, No. 1:16-cv-01578-
5
AWI-SAB-HC, 2018 WL 400317, at *10 (E.D. Cal. Jan. 12, 2018) (stating transfer of
6
petitioner convicted of crime to remote facility is “ordinary incident of immigration
7
detention” and does not violate right to familial association); Gordon v. Mule, 153 Fed.
8
Appx. 39 (2d Cir. 2005) (stating right to family unity not violated when petitioner ordered
9
removed after conviction of crime). Plaintiffs argue those cases involve challenges to a
10
parent’s detention and transfer away from children who were not themselves initially
11
detained with their parents. According to Plaintiffs, the practice alleged here “is not a
12
necessary incident of detention; it is the result of an unnecessary governmental action
13
intended to separate family units who were arrested together[.]” (Opp’n to Mot. to Dismiss
14
at 21.)
15
The Government also cites cases that subordinate the right to family integrity of
16
citizen children when their non-citizen parents are deported. See, e.g., Gallanosa by
17
Gallanosa v. United States, 785 F.2d 116 (4th Cir. 1986) (parents ordered deported after
18
overstaying visa causing family separation). But Plaintiffs are not contesting the grounds
19
for their potential removal—only their treatment by the Government during their
20
immigration proceedings.
21
The Government also cites cases where interference with the right to family integrity
22
was upheld in furtherance of identified safety or other penological interests. See, e.g.,
23
Overton v. Bazetta, 539 U.S. 126, 133 (2003) (upholding restrictions on family visitation
24
of sentenced prisoners for security reasons and “to protect[ ] child visitors from exposure
25
to sexual or other misconduct[.]”). However, Plaintiffs argue the Government is acting
26
without determining parentage, fitness or danger to the child (or any other legitimate
27
reason), let alone for a stated security reason.
28
16
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1
The case that provides the most support for Defendants’ argument that Plaintiffs’
2
constitutional right to familial association is not implicated here is Aguilar. But it, too, is
3
factually distinguishable. In that case, ICE agents conducted a raid of the plaintiffs’
4
workplace as part of an investigation into the employment practices of a government
5
contractor “suspected of employing large numbers of illegal aliens.” Aguilar, 510 F.3d at
6
6. As part of the raid, ICE agents “took more than 300 rank-and-file employees into
7
custody for civil immigration infractions.”
8
approximately 200 of those employees were transferred from a holding facility in
9
Massachusetts, where the raid took place, to detention centers in Texas for removal. Id.
10
Because of the surprise nature of the raid, “a substantial number of the detainees’ minor
11
children were left for varying periods of time without adult supervision.” Id. As a result,
12
the plaintiffs filed a complaint in district court alleging “in essence that their immediate
13
detention and swift transfer to distant [detention and removal operations centers] wreaked
14
havoc with their right to make decisions about the care, custody, and control of their minor
15
children, leaving many minors unattended.” Id. at 22. The court in Aguilar looked to the
16
nature of the right at issue, and expressed concern for expanding that right to the facts of
17
the case, and concluded plaintiffs had not demonstrated that the right to family integrity
18
“encompasse[d]” their claims. Id. at 23-24.
Id.
In the days following the raid,
19
However, unlike Plaintiffs in this case, none of the plaintiffs in Aguilar were
20
detained with their children. Instead, the plaintiffs in Aguilar appear to have been detained
21
at the worksite while their children were elsewhere in the community.7 Because the context
22
23
24
25
26
27
28
The court in Aguilar noted, “ICE attempted to coordinate with social services agencies
to assure the adequate care of dependent children[,] … took affirmative steps before and
after the raid to attend to family needs[,] …[and] immediately released thirty-five persons
who had been apprehended due to ‘pressing humanitarian needs’ (such as being the sole
caregiver of one or more minor children).” 510 F.3d at 22 n.5 (citing findings of the district
court). In light of the differences with Aguilar, Plaintiffs have disavowed that the class
alleged in the Amended Complaint would include parents like those in Aguilar, suggesting
7
17
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1
and details of the present case are different from those presented in Aguilar, that court’s
2
analysis of the plaintiffs’ substantive due process rights has limited application here. See
3
id. at 22 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005)) (noting “the
4
jurisprudence of substantive due process is an exercise that is ‘highly dependent on context
5
and detail.’”).
6
Here, the Court is faced with Plaintiffs who present different circumstances, but each
7
Plaintiff has demonstrated that the right to family integrity encompasses her particular
8
situation. According to the allegations in the Amended Complaint, Ms. L. did everything
9
right. She and her child presented at the port of entry and requested asylum. She passed a
10
credible fear screening interview, was taken out of expedited removal proceedings, and
11
placed in removal proceedings before an IJ to pursue her asylum claim. Ms. C., by contrast,
12
did not do everything right. She committed a crime by entering the United States illegally,
13
and was prosecuted and imprisoned for her transgression: 25 days in custody for
14
misdemeanor violation of 8 U.S.C. § 1325 (illegal entry). However, having served her
15
sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too
16
had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for
17
purposes of pursuing her due process claim. Ms. L.’s claim is based on the initial
18
separation from her child, while Ms. C.’s claim is based on the continued separation from
19
her child. Both claims focus on government conduct in separating families during removal
20
proceedings.
21
Although Plaintiffs do not limit this case to asylum seekers, that each of the named
22
Plaintiffs is seeking asylum is important to the due process analysis. “U.S. asylum law
23
arises largely out of international agreements that have been incorporated into immigration
24
law.” Kevin R. Johnson, Understanding Immigration Law, 2d. Ed. (2015), at 353. Those
25
international agreements came about after World War II displaced millions of people and
26
27
28
that the facts in Aguilar are “more analogous to a pretrial criminal case.” (Rep.’s Tr. at 35,
May 9, 2018, ECF No. 70.)
18
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1
created the need for international collaboration to address the refugee crisis. See id. In the
2
early 1950s, the United Nations Convention Relating to Status of Refugees (“Convention”)
3
attempted to provide a uniform protocol for refugee policy, and the United States is now a
4
signatory to that Convention. See id. According to the Convention, a “refugee” is someone
5
who (1) is outside his or her country of nationality, (2) has fled that country and cannot
6
return home because he or she faces the reality or the risk of persecution, and (3) faces
7
persecution due to his or her political opinion, race, religion, nationality, or membership in
8
a particular social group. See id. at 353-54. These concepts have been incorporated into
9
U.S. law, specifically the INA. See, e.g., INA § 101(a)(42) (adopting definition of
10
refugee); 8 U.S.C. § 1101(a)(42).
11
Asylum “has been a formal part of U.S. domestic law for 38 years.” Deborah Anker,
12
Law of Asylum, in the United States § 1.1 (2018). The Refugee Act, PL 96-212, 94 Stat.
13
102 (1980), in particular, “codified provisions for persons to apply for asylum status[.]”
14
Id. According to its provisions, “a person who applies for asylum protection must be
15
physically present or ‘arriving’ in the United States.” Id. at § 1.6 (citing 8 U.S.C. § 1158).
16
The act of seeking sanctuary from persecution in accordance with our country’s own
17
asylum laws is significant given that due process is particularly concerned with “ordered
18
liberty” and “fundamental fairness.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C.,
19
452 U.S. 18, 24 (1981). Arriving on United States soil with one’s minor child to pursue
20
relief extended by U.S. law—as well as international law to which the United States has
21
acceded—calls out for careful assessment of how governmental actors treat such people
22
and whether constitutional protections should apply.
23
In this case, both Ms. L. and Ms. C. allege they are seeking asylum in the United
24
States, and that they were separated from their children upon arriving at our nation’s border
25
without any determination they were unfit or presented a danger to their children. They
26
allege they are victims of a wide-spread government practice to separate migrant families
27
“for no legitimate reason and notwithstanding the threat of irreparable psychological
28
damage that separation has been universally recognized to cause young children.” (Am.
19
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1
Compl. ¶ 1.) They allege this practice may soon become “formal national policy” for
2
purposes of deterring others from coming to the United States. (Id. ¶ 34b;8 see also Opp’n
3
to Mot. to Dismiss at 2 & 16 n.12) (citations omitted)).
4
Notably, Plaintiffs’ allegations are similar to those pointed out by the court in
5
Aguilar as being sufficient to demonstrate that the guarantee of substantive due process
6
encompasses their assertions: “Were a substantial number of young children knowingly
7
placed in harm’s way, it is easy to imagine how viable [due process] claims might lie.”
8
510 F.3d at 22. The allegations here present that “narrow subset of circumstances[,]” id.,
9
at 23, where the right to family integrity ought to apply. The Court finds it does.
10
2.
11
Does the Alleged Governmental Conduct “Shock the Conscience” and Violate
the Right to Family Integrity?
12
Where substantive due process applies to the particular circumstances alleged, as
13
here, the “threshold question is whether the behavior of the governmental officer is so
14
egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”
15
Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). Plaintiffs dispute that the
16
“shock the conscience” test applies, (see Opp’n to Mot. to Dismiss at 22), but they fail to
17
explain what test should apply. Plaintiffs appear to argue they have “[s]tated a substantive
18
due process claim” simply by alleging facts that show the government is separating
19
children from their parents “absent a clear demonstration that the parent is unfit or is
20
otherwise endangering the child.” (Id. at 15-16.) In support, Plaintiffs cite Quilloin for the
21
settled principle that “the Due Process Clause would be offended ‘[i]f a State were to
22
attempt to force the breakup of a natural family . . . without some showing of unfitness[.]”
23
434 U.S. at 255 (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63
24
(1977)). But the Supreme Court has also made clear that “the substantive component of
25
the Due Process Clause is violated by executive action only when it ‘can properly be
26
27
28
The Amended Complaint lists Paragraphs 33 and 34 twice. The Court refers to the second
paragraphs as Paragraphs 33b and 34b.
8
20
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1
characterized as arbitrary, or conscience shocking, in a constitutional sense.’” Lewis, 523
2
U.S. at 847 (quoting Collins, 503 U.S. at 128). See also Aguilar, 510 F.3d at 21 (applying
3
“shock the conscience” standard to determine whether plaintiffs stated substantive due
4
process claim based on government’s separation of parents from minor children).
5
Defendant has relied on that standard in arguing Plaintiffs have failed to state a substantive
6
due process claim, and Plaintiffs have briefed why the alleged government conduct meets
7
the standard (though they dispute the standard applies at all). On the present motion, the
8
Court applies the “shocks the conscience” standard to determine whether Plaintiffs have
9
alleged sufficient facts to state a plausible claim for violation of their substantive due
10
process rights.9
11
The “touchstone of due process is protection of the individual against arbitrary action
12
of government,” Wolf v. McDonnell, 418 U.S. 539, 558 (1974), and the “exercise of power
13
without any reasonable justification in the service of a legitimate governmental
14
objective[.]” Lewis, 523 U.S. at 846. The due process guarantee bars certain offensive
15
government actions “regardless of the fairness of the procedures used to implement them.”
16
Daniels v. Williams, 474 U.S. 327, 331 (1986)). It targets governmental conduct that
17
violates the “decencies of civilized conduct[,]” Rochin v. California, 342 U.S. 165, 173
18
(1952), interferes with rights “‘implicit in the concept of ordered liberty[,]’” id. at 169
19
(quoting Palko v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and
20
‘offensive’ that it [does] not comport with traditional ideas of fair play and decency[.]”
21
Breithaupt v. Abram, 352 U.S. 432, 435 (1957). Thus, substantive due process protects
22
against government power arbitrarily and oppressively exercised. Daniels, 474 U.S. at
23
331. “Historically, this guarantee of due process has been applied to deliberate decisions
24
25
26
27
28
The Court reserves on whether a different test might apply as the case develops and the
issues are more clearly framed through discovery and other substantive motions. See, e.g.,
Halet v. Wend Inv. Co., 672 F.2d 1305, 1310-11 (9th Cir. 1982) (policy precluding renting
to families with children analyzed under strict scrutiny test).
9
21
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1
of government officials to deprive a person of life, liberty, or property.” Id. Accordingly,
2
“the ‘shock the conscience’ standard erects a high hurdle for would-be claimants.” Aguilar,
3
510 F.3d at 21. Plaintiffs have set forth sufficient facts to satisfy this requirement and to
4
survive the present motion.
5
Plaintiffs allege they both suffered wrenching separation from their children for “no
6
legitimate purpose” and in furtherance of a wide-spread government practice that soon may
7
become “national policy.” (Am. Compl. ¶¶ 31, 34b.) A policy of family separation to
8
serve “ulterior law enforcement goals” admittedly would be “antithetical to the child
9
welfare values” imposed on government actors by the TVPRA. (Opp’n to Mot. for Prelim.
10
Inj. at 3, ECF No. 46.) Yet, Plaintiffs allege that practice is being implemented in full view
11
of the “devastating negative impact” that separation has on a “child’s well-being, especially
12
where there are other traumatic factors at work, and that this damage can be permanent.”
13
(Am. Compl. ¶ 33.) (See also Br. by Amici Curiae in Supp. of Pl.’s Habeas Corpus Pet.
14
and Compl. at 2-3, ECF No. 17-3 (describing psychological and emotional trauma that is
15
visited upon young children when they are separated from their parents)). As for their own
16
children, Plaintiffs allege S.S. was screaming, crying, and “pleading with guards not to take
17
her away from her mother[,]” (Am. Compl. ¶ 43), and J. is struggling emotionally. (Id. ¶
18
59.) Plaintiffs also allege they, themselves, are consumed by feelings of desperation and
19
worry. (Id. ¶¶ 48, 58.)
20
These allegations call sharply into question the separations of Plaintiffs from their
21
minor children. This is especially so because Plaintiffs allegedly came to the United States
22
seeking shelter from persecution in their home countries, and are seeking asylum here. For
23
Plaintiffs, the government actors responsible for the “care and custody” of migrant children
24
have, in fact, become their persecutors. This is even more problematic given Plaintiffs’
25
allegations and assertions that there is a government practice, and possibly a forthcoming
26
policy, to separate parents from their minor children in an effort to deter others from
27
coming to the United States. This alleged practice is being implemented even when parents
28
like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned
22
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1
to present asylum claims meriting consideration by an IJ in their removal proceedings.
2
These allegations sufficiently describe government conduct that arbitrarily tears at the
3
sacred bond between parent and child, and is emblematic of the “exercise of power without
4
any reasonable justification in the service of an otherwise legitimate governmental
5
objective[.]” Lewis, 523 U.S. at 846. Such conduct, if true, as it is assumed to be on the
6
present motion, is brutal, offensive, and fails to comport with traditional notions of fair
7
play and decency. At a minimum, the facts alleged are sufficient to show the government
8
conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to
9
family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim
10
is denied.10
11
F.
The APA
12
Next, Defendants argue Plaintiffs have not stated a claim under the APA.
13
Defendants assert the APA does not provide for judicial review of discretionary decisions.
14
Defendants also contend their decisions to separate Plaintiffs from their minor children was
15
not arbitrary or capricious, those decisions do not constitute “final agency actions,” and
16
there are other adequate remedies available.
17
Under the APA, “[a]gency action made reviewable by statute and final agency action
18
for which there is no other adequate remedy in a court are subject to judicial review.” 5
19
20
21
22
23
24
25
26
27
28
The above discussion is focused on whether Plaintiffs have stated a claim for violation
of their substantive due process rights. Plaintiffs also allege a claim for violation of their
procedural due process rights in light of the Government’s practice of “separating families
without any process to determine whether the separation is justified by parental abuse,
unfitness, or any other reason.” (Opp’n to Mot. to Dismiss at 23.) Defendants move to
dismiss on the ground there is no substantive due process right to familial association under
these circumstances, and assert Plaintiffs’ procedural due process argument “is really [a]
‘substantive due process argument recast in procedural terms.’” (Mem. of P. & A. in Supp.
of Mot. to Dismiss at 18) (quoting Reno v. Flores, 507 U.S. 292, 293 (1993)) (internal
quotation marks omitted). In light of the above discussion, the Court declines to address
further Plaintiffs’ procedural due process claim.
10
23
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1
U.S.C. § 704. The conduct at issue in this case, separation of parents from their minor
2
children when both are in immigration detention and when there is no showing the parent
3
is unfit or presents a danger to the child, is not reviewable by statute. Thus, the issue is
4
whether this conduct is a “final agency action for which there is no other adequate remedy
5
in a court.” There are two conditions that:
6
must be satisfied for agency action to be “final” under the APA. “First, the
action must mark the consummation of the agency’s decisionmaking process
- it must not be of a merely tentative or interlocutory nature. And second, the
action must be one by which rights or obligations have been determined, or
from which legal consequences will flow.”
7
8
9
10
United States Army Corps of Engineers v. Hawkes Co., ___ U.S. ___, 136 S.Ct. 1807, 1813
11
(2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). Here, Plaintiffs have not
12
alleged separation from their children satisfies either of these requirements. Nor did they
13
address these requirements in their opposition brief. Furthermore, since the filing of the
14
Complaint Ms. L. has been reunited with her daughter, and the Government claims in its
15
briefing that it is in the process of deciding whether to reunify Ms. C. and her son pursuant
16
to the TVPRA. Under these circumstances, Plaintiffs have failed to allege facts sufficient
17
to show “final agency action” subject to review under the APA. Based on this failure, the
18
Court grants Defendants’ motion to dismiss this claim.
19
G.
The Asylum Act
20
Finally, Defendants argue Plaintiffs have failed to state a claim under the Asylum
21
Act. Defendants assert Plaintiffs lack standing to bring a claim under the Act, and have
22
failed to allege sufficient facts to state a claim under the Act.
23
Initially, it is unclear what portion of the Asylum Statute Plaintiffs are relying on as
24
the basis for this claim. They cite 8 U.S.C. § 1158 in their Amended Complaint, and allege
25
separation from their children violates the statute “because it impedes their ability to pursue
26
their asylum claims.” (Am. Compl. ¶ 85.) However, 8 U.S.C. § 1158(d), which sets out
27
the procedure for applying for asylum, states: “Nothing in this subsection shall be
28
construed to create any substantive or procedural right or benefit that is legally enforceable
24
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1
by any party against the United States or its agencies or officers or any other person.” 8
2
U.S.C. § 1158(d)(7). Although no party addressed this subsection of the statute on the
3
present motion, it is unclear to the Court whether Plaintiffs have a private right of action
4
under the Asylum Statute in the first instance. Absent any authority that a private right of
5
action exists, the Court grants Defendants’ motion to dismiss this claim.
6
III.
7
CONCLUSION AND ORDER
8
For the reasons set out above, the Court grants in part and denies in part Defendants’
9
motion to dismiss. Specifically, the Court grants Defendants’ motion to dismiss Plaintiffs’
10
claims under the APA and the Asylum Statute, and denies Defendants’ motion to dismiss
11
Plaintiffs’ due process claim. Although Plaintiffs did not request leave to amend in the
12
event any portion of Defendants’ motion was granted, the Court grants Plaintiffs leave to
13
file a Second Amended Complaint that cures the pleading deficiencies set out above. If
14
Plaintiffs wish to do so, they shall file their Second Amended Complaint on or before July
15
3, 2018.
16
17
IT IS SO ORDERED.
Dated: June 6, 2018
18
19
20
21
22
23
24
25
26
27
28
25
18cv0428 DMS (MDD)
Exhibit 3
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 82 Filed 06/26/18 PageID.1706 Page 1 of 18
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
Ms. L.; et al.,
Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,
12
13
v.
14
ORDER GRANTING IN PART
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
U.S Immigration and Customs
Enforcement (“ICE”); et al.,
15
16
Respondents-Defendants.
17
18
Pending before the Court is Plaintiffs’ motion for class certification. Plaintiffs, on
19
behalf of themselves and putative class members, allege the Government has a widespread
20
practice or policy of separating migrant families, and placing the children in facilities for
21
“unaccompanied minors.” Recent developments validate Plaintiffs’ allegations. Plaintiffs
22
seek to certify a class of similarly situated individuals for whom injunctive relief can be
23
entered prohibiting separation of migrant parents from their minor children without first
24
determining they are unfit parents or otherwise present a risk of danger to their children, as
25
well as an injunction requiring reunification of migrant parents who are returned to
26
immigration custody upon completion of any criminal proceedings, absent a determination
27
that the parent is unfit or presents a danger to the child.
28
1
18cv0428 DMS (MDD)
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1
On June 6, 2018, the Court entered an order finding Plaintiffs had stated a claim for
2
violation of their substantive due process rights to family integrity under the Fifth
3
Amendment to the United States Constitution based on claims that the Government had
4
separated them from their minor children while Plaintiffs were held in immigration
5
detention without a showing that they were unfit parents or otherwise presented a danger
6
to their children. Ms. L. v. U.S. Immigration & Customs Enf’t, 302 F. Supp. 3d 1149, 2018
7
WL 2725736, at *9-12 (S.D. Cal. June 6, 2018). Since the issuance of that Order, the
8
practice of family separation has intensified and become a matter of intense national
9
debate.
10
The Attorney General of the United States announced a “zero tolerance” policy. 1
11
Under that policy, all adults entering the United States illegally would be subject to
12
criminal prosecution, and if accompanied by a minor child, the child would be separated
13
from the parent. Over the ensuing weeks, hundreds of migrant children were separated
14
from their parents, further stoking the flames of nationwide protest. On June 20, 2018, the
15
President of the United States signed an Executive Order (“EO”) to “maintain family unity”
16
by keeping migrant families together during criminal and immigration proceedings to the
17
extent permitted by law, while maintaining “rigorous[]” enforcement of immigration laws.
18
See Executive Order, Affording Congress an Opportunity to Address Family Separation §
19
1, 2018 WL 3046068 (June 20, 2018). On Saturday, June 23, 2018, the Department of
20
Homeland Security (“DHS”) issued a “Fact Sheet” outlining the Government’s efforts to
21
“ensure that those adults who are subject to removal are reunited with their children for the
22
purposes of removal.”2
23
24
25
26
27
28
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),
1
2
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1
Following issuance of the EO, a status conference was held on June 22, 2018, at
2
which time Lee Gelernt and Bardis Vakili appeared for Plaintiffs, and Sarah Fabian and
3
Samuel Bettwy appeared for Defendants. After hearing from counsel and considering the
4
parties’ supplemental briefing, Plaintiffs’ motion for class certification is granted in part
5
for the reasons set forth below.
6
I.
7
DISCUSSION3
8
Plaintiff Ms. L. and her minor child S.S. arrived lawfully at one of our nation’s ports
9
of entry seeking asylum. Ms. L. and her child were detained together for several days, and
10
later “forcibly separated” by immigration officials without a determination that Ms. L. was
11
unfit or presented a danger to her child. S.S., then six years old, was placed in a government
12
facility for “unaccompanied minors” over a thousand miles away from Ms. L. Ms. L. and
13
S.S. were separated for nearly five months.
14
Plaintiff Ms. C. and her minor child J. entered the United States illegally between
15
ports of entry. Upon apprehension by a Border Patrol agent, Ms. C. made a claim for
16
asylum. She was arrested, charged with misdemeanor illegal entry under 8 U.S.C. §
17
1325(a) (“criminal improper entry” under EO § 1), and served 25 days in custody. After
18
serving her criminal sentence, Ms. C. was returned to immigration detention to contest
19
removal and pursue her asylum claim. Ms. C.’s minor son was also placed in a government
20
facility for “unaccompanied minors,” hundreds of miles away from his mother.
21
Undisputed news reports reflect the two were reunited earlier this month, after being
22
23
24
25
26
27
28
https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-familyreunification.
3
The factual background set out herein is abbreviated. A full discussion of the facts
relevant to this lawsuit is set out in the Order granting Plaintiffs’ motion for classwide
preliminary injunction filed concurrently herewith and Order granting in part and denying
in part Defendants’ motion to dismiss. Ms. L., 2018 WL 2725736, at *1-3.
3
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1
separated for over eight months.4 Plaintiffs allege Defendants failed to reunite Ms. C. and
2
her son during this period of time even though Ms. C.’s fitness as a parent was never
3
questioned by government officials. Plaintiffs do not challenge the initial separation of
4
Ms. C. from her child, as the separation resulted from prosecution for illegal entry and
5
placement in criminal custody.5 Rather, Ms. C. challenges the Government’s failure to
6
reunify her with her son after she completed her 25-day criminal sentence and was returned
7
to immigration detention.
8
Ms. L.’s claim is based on the initial separation from her child while in immigration
9
detention; Ms. C.’s claim is based on the failure to reunite her with her child after serving
10
her criminal sentence and being returned to immigration detention. Both claims focus on
11
government conduct separating parents from minor children while the parent is detained
12
pending immigration proceedings without a showing the parent is unfit or presents a danger
13
to the child. Plaintiffs allege separation from their children under these circumstances
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
See Tom Llamas et al., Brazilian Mother Reunites with 14-year-old son 8 Months After
Separation at U.S. Border, ABC NEWS (June 5, 2018, 6:50 PM),
https://abcnews.go.com/US/brazilian-mother-reunites-14-year-son-monthsseparation/story?id=55666724.
5
In their Supplemental Briefing, Plaintiffs point out that when a parent is prosecuted for
illegal entry, separation is not required. “If the parent is being prosecuted but is nonetheless
being held in a DHS facility, then there is no need to separate the family, because DHS can
house families.” (Pls.’ Suppl. Br. at 8.) The EO in fact provides for “family unity” by
directing DHS “to maintain custody of alien families during the pendency of any criminal
improper entry or immigration proceedings[,]” to the extent permitted by law. EO § 3.
This is a new development. Plaintiffs argue the confusion is the result of the “government’s
shifting practice regarding the detention of parents facing criminal prosecution.” (Pls.’
Suppl. Br. at 8.) For purposes of defining the class, however, the Court will carve out
parents who fall within the EO. EO § 2(a) (defining “Alien family”). The EO provides for
“family unity” and detaining “family units” together, id. §§ 1, 3, so further relief may be
unnecessary. The EO also employs its own standard for determining detention of alien
families. Id. § 3(b). To avoid potential conflict with the standard employed by the EO and
that used by the Court, the class definition will not include such individuals. (See Defs.’
Suppl. Br. at 3.) The Court reserves on other issues that might arise given these recent
developments.
4
4
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1
violates their right to family integrity under the Due Process Clause of the Fifth
2
Amendment to the United States Constitution. In the Complaint, Plaintiffs alleged that
3
hundreds of other migrant families had been subjected to the same treatment and that this
4
had become a widespread practice of the current Administration. They cited numerous
5
reports that the Government would soon adopt a formal national policy of separating
6
migrant families and placing the children in government facilities for “unaccompanied
7
minors.” The Government initially denied it had such a practice or policy, but has since
8
distanced itself from that position in light of recent developments—including the zero
9
tolerance policy which touted family separation.
10
11
Plaintiffs, on behalf of themselves and putative class members, request certification
of the following class:
12
All adult parents nationwide who (1) are or will be detained in immigration
custody by the Department of Homeland Security, and (2) have a minor child
who is or will be separated from them by DHS and detained in ORR custody,
absent a demonstration in a hearing that the parent is unfit or presents a danger
to the child.
13
14
15
16
(Am. Compl. ¶ 65; Mem. in Supp. of Mot. at 1.) Plaintiffs argue this proposed class meets
17
the requirements of Federal Rule of Civil Procedure 23(a) and (b)(2). Defendants dispute
18
these requirements are met. The only claim currently at issue and subject to certification
19
is Plaintiffs’ due process claim.6 Plaintiffs’ pending motion for classwide preliminary
20
injunction is addressed in a separate order.
21
A.
Legal Standard
22
“The class action is ‘an exception to the usual rule that litigation is conducted by and
23
on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
24
25
26
27
28
The Court expresses no opinion on whether Plaintiffs are entitled to certification on any
other claim that may be asserted in Plaintiffs’ Second Amended Complaint. At the hearing
on June 22, 2018, Plaintiffs’ counsel indicated an amended pleading would be forthcoming,
but requested the Court to rule on the presently pending motions.
6
5
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1
338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To qualify
2
for the exception to individual litigation, the party seeking class certification must provide
3
facts sufficient to satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b).
4
Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir. 1977). “The
5
Rule ‘does not set forth a mere pleading standard.’” Comcast Corp. v. Behrend, 569 U.S.
6
27, 33 (2013) (quoting Dukes, 564 U.S. at 350). “Rather, a party must not only ‘be prepared
7
to provide that there are in fact sufficiently numerous parties, common questions of law or
8
fact,’ typicality of claims of defenses, and adequacy of representation, as required by Rule
9
23(a). The party must also satisfy through evidentiary proof at least one of the provisions
10
of Rule 23(b)[.]” Id. (quoting Dukes, 564 U.S. at 350) (internal citation omitted).
11
Federal Rule of Civil Procedure 23(a) sets out four requirements for class
12
certification—numerosity, commonality, typicality, and adequacy of representation. A
13
showing that these requirements are met, however, does not warrant class certification.
14
The plaintiff also must show that one of the requirements of Rule 23(b) is met. Here,
15
Plaintiffs assert they meet the requirements of Rule 23(b)(2).
16
Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or
17
refused to act on grounds that apply generally to the class, so that final injunctive relief or
18
corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R.
19
Civ. P. 23(b)(2). Because the relief requested in a (b)(2) class is prophylactic, enures to
20
the benefit of each class member, and is based on accused conduct that applies uniformly
21
to the class, notice to absent class members and an opportunity to opt out of the class is not
22
required. See Dukes, 564 U.S. at 361-62 (noting relief sought in a (b)(2) class “perforce
23
affect[s] the entire class at once” and thus, the class is “mandatory” with no opportunity to
24
opt out).
25
The district court must conduct a rigorous analysis to determine whether the
26
prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).
27
It is a well-recognized precept that “the class determination generally involves
28
considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s
6
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1
cause of action.”’ Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quoting
2
Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963)). However, “[a]lthough
3
some inquiry into the substance of a case may be necessary to ascertain satisfaction of the
4
commonality and typicality requirements of Rule 23(a), it is improper to advance a decision
5
on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d
6
475, 480 (9th Cir. 1983) (citation omitted); see also Nelson v. United States Steel Corp.,
7
709 F.2d 675, 680 (11th Cir. 1983) (plaintiff’s burden “entails more than the simple
8
assertion of [commonality and typicality] but less than a prima facie showing of liability”)
9
(citation omitted). Rather, the court’s review of the merits should be limited to those
10
aspects relevant to making the certification decision on an informed basis. See Fed. R. Civ.
11
P. 23 advisory committee notes. If a court is not fully satisfied that the requirements of
12
Rule 23(a) and (b) have been met, certification should be refused. Falcon, 457 U.S. at 161.
13
B.
14
15
Rule 23(a)
Rule 23(a) and its prerequisites for class certification—numerosity, commonality,
typicality, and adequacy of representation—are addressed in turn.
16
1.
17
Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is
18
impracticable.” Fed. R. Civ. P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.
19
2003). The plaintiff need not state the exact number of potential class members; nor is a
20
specific minimum number required. Arnold v. United Artists Theatre Circuit, Inc., 158
21
F.R.D. 439, 448 (N.D. Cal. 1994). Rather, whether joinder is impracticable depends on
22
the facts and circumstances of each case. Id.
Numerosity
23
Here, Plaintiffs asserted in their motion that there were as many as 700 families that
24
fell within the proposed class. In support of this assertion, Plaintiffs presented declarations
25
from a number of attorneys that provide legal services to immigrant families in border
26
States. (See Mem. in Supp. of Mot., Exs. 13-15.) Those attorneys declared they had seen
27
hundreds of situations of children separated from their parents after being apprehended by
28
DHS officials. (See id., Ex. 13 ¶ 4; Ex. 14 ¶¶ 3-5; Ex. 15 ¶ 2.) One of those attorneys also
7
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1
stated separations were occurring even when there was no “substantiated reason to suspect
2
that the adult and child are not in fact related, or reason to suspect that the child is in
3
imminent physical danger from the adult[.]” (Id., Ex. 14 ¶ 6;) (see also id., Ex. 15 ¶ 3)
4
(stating “parents have been forcibly separated from their children and placed in detention
5
for extended periods of time without any information regarding their whereabouts, safety,
6
or wellbeing.”). This evidence is sufficient to show the numerosity requirement is met
7
here. Accordingly, Plaintiffs have satisfied the first requirement of Rule 23(a).7
8
2.
9
The second element of Rule 23(a) requires the existence of “questions of law or fact
10
common to the class[.]” Fed. R. Civ. P. 23(a)(2). This element has “‘been construed
11
permissively,’ and ‘[a]ll questions of fact and law need not be common to satisfy the rule.’”
12
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Hanlon v.
13
Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). “However, it is insufficient to
14
merely allege any common question[.]” Id. Instead, the plaintiff must allege the existence
15
of a “common contention” that is of “such a nature that it is capable of classwide
16
resolution[.]” Dukes, 564 U.S. at 350. As summarized by the Supreme Court:
17
Commonality
What matters to class certification ... is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the
litigation. Dissimilarities within the proposed class are what have the
potential to impede the generation of commons answers.
18
19
20
21
22
23
24
25
26
27
28
Notably, Defendants do not challenge whether the numerosity requirement is met, and at
the May 4, 2018 hearing on this motion, they did not dispute Plaintiffs’ approximation of
the number of families that had been separated. Since the hearing, DHS has stated that
“1,995 minors were separated from their ‘alleged adult guardians’ at the southern border
in just over a month long period.” See Brian Naylor, DHS: Nearly 2,000 Children
Separated from Adults at Border in 6 Weeks, NPR (June 16, 2018, 7:01 AM),
https://www.npr.org/2018/06/16/620451012/dhs-nearly-2-000-children-separated-fromadults-at-border-in-six-weeks. On June 23, 2018, DHS indicated in its Fact Sheet that as
of June 20 it had 2,053 separated minors in HHS funded facilities. U.S. Dep’t of Homeland
Sec., supra note 2.
7
8
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1
Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84
2
N.Y.U. L. Rev. 97, 132 (2009)).
3
In this case, Plaintiffs assert there are a number of questions common to the class.
4
First, they assert they are alleging the same legal claim, namely whether Defendants’
5
practice of separating putative class members from their minor children and continued
6
separation without a hearing and determination that they are unfit parents or present a
7
danger to their children violates their right to family integrity under the Due Process
8
Clause. Second, Plaintiffs contend the facts underlying their claims are the same: each
9
was detained with their child by government actors, who then separated them from their
10
children, or failed to reunite them, without a showing they were unfit or presented a danger
11
to the child. Third, Plaintiffs assert they suffered the same injury, namely separation from
12
their children in violation of their constitutional rights. Fourth, Plaintiffs contend they are
13
challenging the same government practice regarding separation of parents and children or
14
the refusal to reunite parents and children absent a showing the parent is unfit or presents
15
a danger to the child. Finally, Plaintiffs claim they are seeking the same relief: a
16
declaration that the conduct at issue is unlawful, and injunctions (1) preventing the
17
separation of such parents and children without a showing the parent is unfit or presents a
18
danger to the child, and (2) requiring reunification of the families already separated absent
19
similar findings.
20
Defendants argue these questions cannot be answered on a classwide basis because
21
the circumstances surrounding each separation of parent and child are different. In support
22
of this argument, Defendants point to the circumstances giving rise to the separations of
23
Plaintiffs and their children in this case, which are indisputably different. Ms. L. was
24
separated from her daughter because the Government allegedly could not confirm
25
parentage (though a DNA test taken several months after Ms. L. was separated from her
26
child confirmed the relationship), while Ms. C. was separated from her son when she was
27
apprehended near the border, charged with illegal entry, and placed in custody pending
28
resolution of her criminal case.
9
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1
In addition, at oral argument Government counsel set forth another scenario that
2
could result in family separation, namely parents with criminal history that prevents them
3
from being released into the community along with their child or housed together in a
4
detention center with other families.8
5
differently from Ms. L. and Ms. C., neither of whom presented this situation. Unlike with
6
Ms. L. and Ms. C., the Government would have a legitimate interest in continuing detention
7
of individuals who posed a flight risk or danger to the community or others in a family
8
detention facility because of that person’s criminal history. A parent with some kind of
9
communicable disease could also raise legitimate safety concerns.
Obviously, these parents would be situated
10
Plaintiffs concede a parent with a communicable disease might be separately
11
detained, but disagree that criminal history can serve as a generalized exception to the
12
Government’s new policy of “family unity.” Criminal history comes in all gradations,
13
from minor misdemeanors to violent felony offenses. Some types of criminal history
14
would clearly justify separate detention of the parent, while other criminal history might
15
not—and the exercise of governmental discretion to separately detain that individual might
16
be challenged. Whether separate detention of such parents violates substantive due process
17
could raise individualized inquiries.
18
In addition, Plaintiffs’ proposed class definition could include migrant families
19
apprehended in the interior of the country. The number of such families is presently
20
unknown and not part of the record before the Court. This group could include families
21
present in the country for quite some time, with established family roots and connections.
22
These parents also might have both citizen and alien children.
The application of
23
24
25
26
27
28
At oral argument on May 4, 2018, Government counsel pointed out that one of the
declarations submitted by a putative class member involved a “mother who had a
significant criminal history, so ICE [Immigration and Customs Enforcement] was unable
to place her in the family residential center because … [such] centers are a very open
setting. There is [sic] sort of pods. Families are housed together…. There is free
movement. It is not a dententive setting.” (ECF No. 70, at 21-22.)
8
10
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1
substantive due process to this potential group has not been briefed, and presents issues
2
that Plaintiffs have indicated they are prepared to address at a later time.
3
The focus of the present litigation has always been on migrant families entering the
4
United States at or between designated ports of entry. Most of these families are seeking
5
asylum but not all. (See Am. Compl. ¶ 4) (“[A]lmost all of these individuals have fled
6
persecution and are seeking asylum in the United States.”). Thus, although Plaintiffs’
7
proposed class does not exclude parents with criminal history or communicable disease, or
8
those in the interior of the country, the Court finds it appropriate to carve them out of the
9
proposed class. See Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th Cir. 2013)
10
(stating Federal Rule of Civil Procedure 23 “provides district courts with broad authority
11
at various stages in the litigation … to redefine … classes as appropriate.”) (citation
12
omitted). Accordingly, the Court excepts from the class definition—without prejudice to
13
redefining the class on a more fulsome record—parents with criminal history or
14
communicable disease, or those apprehended in the interior of the country.9
15
As discussed, the focus of this litigation is on the Government’s practice of
16
separating migrant parents and children without any showing the parent is unfit or presents
17
a danger to the child, and the continued separation of migrant families without any showing
18
the parent is unfit or presents a danger to the child even after the parents have completed
19
their criminal proceedings and are returned to immigration detention. Those circumstances
20
21
22
23
24
25
26
27
28
At oral argument on May 4, 2018, Government counsel also argued that lack of “bed
space” could cause family separation. At that time, the “total capacity in residential centers
[was] less than 2,700[,]” according to counsel. (ECF No. 70, at 9.) And there was only
one such center for migrant fathers and children, which has “84 or 86 beds.” (Id. at 4344.) Recent events, however, have overtaken that argument. The Government is actively
constructing or converting facilities, even military facilities, to manage the growing
population of migrant families. The EO directs federal agencies to marshal resources to
support family custody. See EO § 3(c) (“The Secretary of Defense shall take all legally
available measure to provide to the Secretary [of Homeland Security], upon request, any
existing facilities available for the housing and care of alien families, and shall construct
such facilities if necessary and consistent with law.”).
9
11
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1
are present in the cases of Ms. L. and Ms. C. Ms. L. lawfully arrived at a port of entry and
2
was separated from her daughter for nearly five months without any showing she was unfit
3
or presented a danger to her, and Ms. C.’s separation from her son continued even after she
4
was returned to immigration custody and despite any showing she was unfit or presented a
5
danger to him. The circumstances of Plaintiffs and their children in this case and the
6
situations described in the declarations submitted in support of this motion are evidence
7
there is a common practice at issue here, namely separating migrant parents and children
8
and failing to reunite them without a showing the parent is unfit or presents a danger to the
9
child. (See Mem. in Supp. of Mot., Exs. 12-15; Reply in Supp. of Mot., Exs. 21-26) (five
10
declarations of parents arriving at designated point of entry, and one declaration of a parent
11
apprehended between ports of entry). Whether that practice violates substantive due
12
process is a question common to the class, and the answer to that question is “apt to drive
13
the resolution of the litigation.” Dukes, 564 U.S. at 350 (quoting Nagareda, supra, at 132).
14
“[C]ommonality only requires a single significant question of law or fact[,]” Mazza
15
v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (citing Dukes, 564 U.S.
16
at 359), and that is particularly so where a suit “challenges a system-wide practice or policy
17
that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th
18
Cir. 2001). The Ninth Circuit’s decision in Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014),
19
is instructive. In that case, the court was faced with a commonality question similar to the
20
one presented here. That case involved a claim that certain policies and practices of the
21
Arizona Department of Corrections (“ADC”) violated the Eighth Amendment’s
22
proscription against cruel and unusual punishment. Id. at 662-63. The defendants in
23
Parsons, similar to Defendants here, argued the commonality requirement was not met
24
because the plaintiffs’ claims were simply “‘a collection of individual constitutional
25
violations,’ each of which hinges on ‘the particular facts and circumstances of each case.’”
26
Id. at 675 (quoting Defs.’ Reply Br. at 9-10). The Ninth Circuit disagreed. It found the
27
defendants’ argument “rest[ed] upon a misunderstanding of the plaintiffs’ allegations.” Id.
28
at 676. Contrary to the defendants’ interpretation of the claim, the court stated, “The
12
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1
Complaint does not allege that the care provided on any particular occasion to any
2
particular inmate (or group of inmates) was insufficient, but rather that ADC policies and
3
practices of statewide and systemic application expose all inmates in ADC custody to a
4
substantial risk of serious harm.” Id. (internal citation omitted). The court then went on to
5
state:
6
7
8
9
10
These policies and practices are the “glue” that holds together the putative
class …; either each of the policies and practices is unlawful as to every
inmate or it is not. That inquiry does not require us to determine the effect of
those policies and practices upon any individual class member (or class
members) or to undertake any other kind of individualized determination.
Id. at 678.
11
Here, as in Parsons, Plaintiffs’ claims do not rest on the individual circumstances of
12
each separation of parent and child. Rather, Plaintiffs are challenging the Government’s
13
practice of separating migrant parents and children and keeping them separate without a
14
showing the parent is unfit or presents a danger to the child. Under these circumstances,
15
the reasoning of Parsons applies here, and that reasoning compels the same conclusion,
16
namely that the commonality requirement is met.
17
3.
18
The next requirement of Rule 23(a) is typicality, which focuses on the relationship
19
of facts and issues between the class and its representatives. “[R]epresentative claims are
20
‘typical’ if they are reasonably co-extensive with those of absent class members; they need
21
not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether
22
other members have the same or similar injury, whether the action is based on conduct
23
which is not unique to the named plaintiffs, and whether other class members have been
24
injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508
25
(9th Cir. 1992) (citation and internal quotation marks omitted). The typicality requirement
26
will occasionally merge with the commonality requirement, Parsons, 754 F.3d at 687,
27
because “[b]oth serve as guideposts for determining whether under the particular
28
circumstances maintenance of a class action is economical and whether the named
Typicality
13
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1
plaintiff’s claim and the class claims are so interrelated that the interests of the class
2
members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349
3
n.5.
4
Here, Plaintiffs rely on the arguments raised on commonality to support a showing
5
of typicality, and Defendants rely on the arguments raised in response thereto to show the
6
typicality requirement is also not met. For the reasons set out above, however, the Court
7
finds Plaintiffs’ claims are typical of the claims of absent class members.
8
Both Plaintiffs were separated or remained separated from their children without any
9
showing they were unfit or presented a danger to their child. By definition, each member
10
of the proposed class will have been subject to this same practice. Furthermore, Plaintiffs’
11
claims are the same as those raised by absent class members, namely the Government’s
12
practice of separating parents and children under the circumstances set out above violates
13
their right to due process. Finally, the injuries suffered by the named Plaintiffs are the
14
same as those suffered by members of the proposed class: separation from their children.
15
See Parsons, 754 F.3d at 685 (finding typicality requirement met where named plaintiffs
16
“allege ‘the same or [a] similar injury’ as the rest of the putative class; they allege that this
17
injury is a result of a course of conduct that is not unique to any of them; and they allege
18
that the injury follows from the course of conduct at the center of the class claims.”).
19
Certainly, the claims of the named Plaintiffs and the claims of class members “are so
20
interrelated that the interests of the class members will be fairly and adequately protected
21
in their absence.” Dukes, 564 U.S. at 349 n.5. The typicality requirement is therefore met.
22
4.
23
The final requirement of Rule 23(a) is adequacy. Rule 23(a)(4) requires a showing
24
that “the representative parties will fairly and adequately protect the interests of the class.”
25
Fed. R. Civ. P. 23(a)(4). This requirement is grounded in constitutional due process
26
concerns; “absent class members must be afforded adequate representation before entry of
27
a judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311
28
U.S. 32, 42-43 (1940)). In reviewing this issue, courts must resolve two questions: “(1) do
Adequacy of Representation
14
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1
the named plaintiffs and their counsel have any conflicts of interest with other class
2
members and (2) will the named plaintiffs and their counsel prosecute the action vigorously
3
on behalf of the class?” Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507,
4
512 (9th Cir. 1978)). The named plaintiffs and their counsel must have sufficient “zeal and
5
competence” to protect the interests of the rest of the class. Fendler v. Westgate-California
6
Corp., 527 F.2d 1168, 1170 (9th Cir. 1975).
7
As to the named Plaintiffs, Defendants argue they are not adequate representatives
8
of the proposed class because both Plaintiffs’ claims are moot and the Court lacks venue
9
over Ms. C.’s claims. For the reasons set out in the Court’s Order on Defendants’ motion
10
to dismiss, the Court rejects these arguments as a basis for finding Plaintiffs to be
11
inadequate representatives. Rather, Plaintiffs have shown they do not have any conflicts
12
of interest with other class members and that they will protect the interests of the class.
13
Accordingly, Plaintiffs are adequate representatives for the class.
14
Plaintiffs have also demonstrated their counsel are adequate. There is no conflict
15
between Plaintiffs’ counsel and the members of the proposed class, and counsel have
16
demonstrated they will prosecute the case vigorously on behalf of the class. Accordingly,
17
the requirement of Rule 23(a)(4) is met.
18
C.
Rule 23(b)
19
Having satisfied the requirements of Rule 23(a), the next issue is whether Plaintiffs
20
have shown that at least one of the requirements of Rule 23(b) is met. Amchem Products,
21
Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). Here, Plaintiffs assert they have met the
22
prerequisites of certification for a class under Rule 23(b)(2).
23
Under Rule 23(b)(2), class certification may be appropriate where a defendant acted
24
or refused to act in a manner applicable to the class generally, rendering injunctive and
25
declaratory relief appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2). The parties
26
agree:
27
28
The key to the (b)(2) class is “the indivisible nature of the injunctive or
declaratory remedy warranted—the notion that the conduct is such that it can
15
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1
2
3
4
5
6
be enjoined or declared unlawful only as to all of the class members or as to
none of them.” [citation omitted] In other words, Rule 23(b)(2) applies only
when a single injunction or declaratory judgment would provide relief to each
member of the class. It does not authorize class certification when each
individual class member would be entitled to a different injunction or
declaratory judgment against the defendant.
Dukes, 564 U.S. at 360.
7
Plaintiffs here argue this case is particularly suited for certification under Rule
8
23(b)(2) because they are presenting a civil rights challenge to a practice that applies to all
9
members of the proposed class, and that practice can be declared lawful or unlawful as to
10
the class as a whole. See Walters v. Reno, 145 F.3d 1032, 1046-47 (9th Cir. 1998) (stating
11
Rule 23(b)(2) “was adopted in order to permit the prosecution of civil rights actions[,]” and
12
is satisfied “if class members complain of a pattern or practice that is generally applicable
13
to the class as a whole.”); see also Parsons, 754 F.3d at 686 (same).
14
Defendants assert individual inquiries would be necessary to determine who falls
15
within the class definition, which precludes certification under Rule 23(b)(2). Defendants
16
point out the proposed class only includes the time period “‘while a parent is in immigration
17
custody, and not the period of separation while the parent is in jail for criminal
18
conviction.’” (Opp’n to Mot. at 14) (quoting ECF No. 35-1, at 11.) Defendants argue the
19
problem with Plaintiffs’ proposed class definition is found in the case of Ms. C.: “It is
20
unclear at what point Ms. C. would become a member of Plaintiffs’ proposed class—
21
whether at the point she was referred for prosecution by CBP [Customs and Border
22
Protection], or later when she was released from criminal custody and detained by ICE in
23
an immigration detention facility.” (Id.)
24
However, the problem posed, namely, when someone becomes a member of the
25
class, is easily resolved. As Plaintiffs explain, a person becomes a member of the class
26
when they are held in immigration detention without their children. (Reply Br. at 7.)
27
Defendants are correct that this determination may involve some individualized inquiries,
28
16
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1
but those inquiries do not detract from the “indivisible” nature of the claim alleged and the
2
relief sought in this case. Dukes, 564 U.S. at 360.
3
Contrary to Defendants’ argument, Plaintiffs have demonstrated that certification
4
under Rule 23(b)(2) is appropriate here. As stated above, the crux of this case is the
5
Government’s practice of separating migrant parents from their minor children and
6
continuing to separate them without any showing the parent is unfit or presents a danger to
7
the child. Based on the record before the Court, the Government has “acted ... in a manner
8
applicable to the class generally, rendering injunctive and declaratory relief appropriate to
9
the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). A determination regarding whether the
10
practice of family separation and failure to reunify such families violates due process and
11
warrants injunctive relief would apply to each class member and drive resolution of the
12
litigation. Accordingly, Rule 23(b)(2) is satisfied.
13
II.
14
CONCLUSION AND ORDER
15
For these reasons, Plaintiffs’ motion for class certification is granted in part as to
16
Plaintiffs’ substantive due process claim. Specifically, the Court certifies the following
17
class under Federal Rule of Civil Procedure 23(b)(2), with the exceptions noted above and
18
as modified:
19
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.10
20
21
22
23
24
25
26
27
28
As discussed in text, infra, the class does not include migrant parents with criminal
history or communicable disease, or those who are in the interior of the United States or
subject to the EO.
10
17
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1
Plaintiffs are appointed as Class Representatives, and Counsel from the ACLU
2
Immigrants’ Rights Project and the ACLU of San Diego and Imperial Counties are
3
appointed as counsel for this Class pursuant to Federal Rule of Civil Procedure 23(g).
4
5
IT IS SO ORDERED.
Dated: June 26, 2018
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18
18cv0428 DMS (MDD)
Exhibit 4
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 83 Filed 06/26/18 PageID.1724 Page 1 of 24
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
Ms. L.; et al.,
Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,
12
13
v.
14
ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASSWIDE
PRELIMINARY INJUNCTION
U.S Immigration and Customs
Enforcement (“ICE”); et al.,
15
16
Respondents-Defendants.
17
18
Eleven weeks ago, Plaintiffs leveled the serious accusation that our Government was
19
engaged in a widespread practice of separating migrant families, and placing minor
20
children who were separated from their parents in government facilities for
21
“unaccompanied minors.”
22
indiscriminately, and separated even those families with small children and infants—many
23
of whom were seeking asylum. Plaintiffs noted reports that the practice would become
24
national policy. Recent events confirm these allegations. Extraordinary relief is requested,
25
and is warranted under the circumstances.
According to Plaintiffs, the practice was applied
26
On May 7, 2018, the Attorney General of the United States announced a “zero
27
tolerance policy,” under which all adults entering the United States illegally would be
28
subject to criminal prosecution, and if accompanied by a minor child, the child would be
1
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1
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
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.
1
2
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1
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
///
3
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1
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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1
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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1
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
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.)
7
9
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1
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
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
8
10
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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.
11
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1
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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1
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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1
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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1
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
15
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1
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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1
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
17
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1
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
16
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.
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
18
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1
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
19
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1
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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1
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.
21
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1
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
22
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1
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
23
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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
16
necessary matters. A notice of teleconference information sheet will be provided in a
17
separate order.
18
19
IT IS SO ORDERED.
Dated: June 26, 2018
20
21
22
23
24
25
26
27
28
24
18cv0428 DMS (MDD)
Exhibit 5
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1749 Page 1 of 19
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5
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Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Attorneys for Petitioner-Plaintiff
*Admitted Pro Hac Vice
Additional counsel on next page
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
11
12
Ms. L. and Ms. C.,
Case No. 18-cv-00428-DMS-MDD
Petitioner-Plaintiff,
13
v.
14
U.S. Immigration and Customs Enforcement
(“ICE”); U.S. Department of Homeland Security
(“DHS”); U.S. Customs and Border Protection
(“CBP”); U.S. Citizenship and Immigration
Services (“USCIS”); U.S. Department of Health
and Human Services (“HHS”); Office of
Refugee Resettlement (“ORR”); Thomas
Homan, Acting Director of ICE; Greg
Archambeault, San Diego Field Office Director,
ICE; Joseph Greene, San Diego Assistant Field
Office Director, ICE; Adrian P. Macias, El Paso
Field Director, ICE; Frances M. Jackson, El Paso
Assistant Field Office Director, ICE; Kirstjen
Nielsen, Secretary of DHS; Jefferson Beauregard
Sessions III, Attorney General of the United
States; L. Francis Cissna, Director of USCIS;
Kevin K. McAleenan, Acting Commissioner of
CBP; Pete Flores, San Diego Field Director,
CBP; Hector A. Mancha Jr., El Paso Field
Director, CBP; Alex Azar, Secretary of the
Department of Health and Human Services;
Scott Lloyd, Director of the Office of Refugee
Resettlement,
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Respondents-Defendants.
Date Filed: July 3, 2018
SECOND AMENDED
COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF
CLASS ACTION
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Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1751 Page 3 of 19
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3
INTRODUCTION
1.
This case challenges the United States government’s forcible
4
separation of parents from their young children for no legitimate reason and
5
notwithstanding the threat of irreparable damage that separation has been
6
universally recognized to cause young children.
7
2.
Plaintiff Ms. L. is the mother of a seven (7) year-old daughter, who
8
was ripped away from her, and then sent halfway across the country to be detained
9
alone. Plaintiff Ms. C. is the mother of a fourteen (14) year-old son, who was also
10
forcibly separated from his mother and detained more than a thousand miles away.
11
3.
Ms. L. and Ms. C. bring this action on behalf of themselves and
12
thousands of other parents whom the government has forcibly separated from their
13
children. Like Ms. L. and Ms. C., many of these individuals have fled persecution
14
and are seeking asylum in the United States. Without any allegations of abuse,
15
neglect, or parental unfitness, and with no hearings of any kind, the government is
16
separating these families and detaining their young children, alone and frightened,
17
in facilities often thousands of miles from their parents.
18
4.
Forced separation from parents causes severe trauma to young
19
children, especially those who are already traumatized and are fleeing persecution
20
in their home countries. The resulting cognitive and emotional damage can be
21
permanent.
22
5.
Defendants have ample ways to keep Plaintiffs together with their
23
children, as they have done for decades prior to their current practice. There are
24
shelters that house families (including asylum-seekers) while they await the final
25
adjudication of their immigration cases. If, however, the government lawfully
26
continues detaining these parents and young children, it must at a minimum detain
27
them together in one of its immigration family detention centers.
28
1
Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1752 Page 4 of 19
1
6.
The Due Process Clause of the Fifth Amendment does not permit the
2
government to forcibly take young children from their parents, without justification
3
or even a hearing. That separation also violates the asylum statutes, which
4
guarantee a meaningful right to apply for asylum, and the Administrative Procedure
5
Act (APA), which prohibits unlawful and arbitrary government action.
6
JURISDICTION
7
7.
This case arises under the Fifth Amendment to the United States
8
Constitution, federal asylum statutes, and the APA. The court has jurisdiction under
9
28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas
10
jurisdiction); and Art. I., § 9, cl. 2 of the United States Constitution (“Suspension
11
Clause”). Plaintiffs are in custody for purposes of habeas jurisdiction.
12
VENUE
13
8.
Venue is proper under 28 U.S.C. § 1391(e) because Ms. L. was
14
detained in this District when this action commenced, Defendants reside in this
15
District, and a substantial portion of the relevant facts occurred within this District,
16
including the Defendants’ implementation of their practice of separating immigrant
17
parents from their children for no legitimate reason.
18
PARTIES
19
20
9.
(the “Congo” or “DRC”). She is the mother of 7 year-old S.S.
21
22
23
24
25
Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo
10.
Plaintiff Ms. C. is a citizen of Brazil. She is the mother of 14 year-old
11.
Defendants U.S. Department of Homeland Security (“DHS”) has
J.
responsibility for enforcing the immigration laws of the United States.
12.
Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the
26
sub-agency of DHS that is responsible for carrying out removal orders and
27
overseeing immigration detention.
28
2
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1
13.
Defendant U.S. Customs and Border Protection (“CBP”) is the sub-
2
agency of DHS that is responsible for the initial processing and detention of
3
noncitizens who are apprehended near the U.S. border.
4
14.
Defendant U.S. Department of Health and Human Services (HHS) is a
5
department of the executive branch of the U.S. government which has been
6
delegated authority over “unaccompanied” noncitizen children.
7
15.
Defendant Office of Refugee Resettlement (“ORR”) is the component
8
of HHS which provides care of and placement for “unaccompanied” noncitizen
9
children.
10
16.
11
12
13
14
Defendant Thomas Homan is sued in his official capacity as the
Director of ICE, and is a legal custodian of Plaintiffs.
17.
Defendant Greg Archambeault is sued in his official capacity as the
ICE San Diego Field Office Director, and is a legal custodian of Plaintiff Ms. L.
18.
Defendant Joseph Greene is sued in his official capacity as the ICE
15
San Diego Assistant Field Office Director for the Otay Mesa Detention Center, and
16
is a legal custodian of Plaintiff Ms. L.
17
18
19
19.
Defendant Adrian P. Macias is sued in his official capacity as the ICE
El Paso Field Office Director, and is a legal custodian of Plaintiff Ms. C.
20.
Defendant Frances M. Jackson is sued in his official capacity as the
20
ICE El Paso Assistant Field Office Director for the West Texas Detention Facility,
21
and is a legal custodian of Plaintiff Ms. C.
22
21.
Defendant Kirstjen Nielsen, is sued in her official capacity as the
23
Secretary of the Department of Homeland Security. In this capacity, she directs
24
each of the component agencies within DHS: ICE, USCIS, and CBP. As a result,
25
Respondent Nielsen has responsibility for the administration of the immigration
26
laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief, and
27
is a legal custodian of the Plaintiffs.
28
3
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1
22.
Defendant Jefferson Beauregard Sessions III is sued in his official
2
capacity as the Attorney General of the United States. In this capacity, he has
3
responsibility for the administration of the immigration laws pursuant to 8 U.S.C. §
4
1103, oversees the Executive Office of Immigration Review, is empowered to grant
5
asylum or other relief, and is a legal custodian of the Plaintiffs.
6
7
8
9
10
11
12
13
14
15
16
17
23.
Director of USCIS.
24.
Defendant Kevin K. McAleenan is sued in his official capacity as the
Acting Commissioner of CBP.
25.
Defendant Pete Flores is sued in his official capacity as the San Diego
Field Director of CBP.
26.
Defendant Hector A. Mancha Jr. is sued in his official capacity as the
El Paso Field Director of CBP.
27.
Defendant Alex Azar is sued in his official capacity as the Secretary of
the Department of Health and Human Services.
28.
Defendant Scott Lloyd is sued in his official capacity as the Director of
the Office of Refugee Resettlement.
18
19
Defendant L. Francis Cissna is sued in his official capacity as the
FACTS
29.
Over the past year, the government has separated thousands of migrant
20
families for no legitimate purpose. The government’s true purpose in separating
21
these families was to deter future families from seeking refuge in the United States.
22
30.
Many of these migrant families fled persecution and are seeking
23
asylum. Although there are no allegations that the parents are unfit or abusing their
24
children in any way, the government has forcibly separated them from their young
25
children and detained the children, often far away, in facilities for “unaccompanied”
26
minors.
27
28
31.
There is overwhelming medical evidence that the separation of a
young child from his or her parent will have a devastating negative impact on the
4
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1
child’s well-being, especially where there are other traumatic factors at work, and
2
that this damage can be permanent.
3
32.
The American Association of Pediatrics has denounced the
4
Administration’s practice of separating migrant children from their parents, noting
5
that: “The psychological distress, anxiety, and depression associated with
6
separation from a parent would follow the children well after the immediate period
7
of separation—even after the eventual reunification with a parent or other family.”
8
9
10
33.
Prior Administrations detained migrant families, but did not have a
practice of forcibly separating fit parents from their young children.
34.
There are non-governmental shelters that specialize in housing and
11
caring for families—including asylum seeking families—while their immigration
12
applications are adjudicated.
13
35.
There are also government-operated family detention centers where
14
parents can be housed together with their children, should the government lawfully
15
decide not to release them. The government previously detained, and continues to
16
detain, numerous family units at those facilities.
17
36.
In April 2018, the New York Times reported that more than “700
18
children have been taken from adults claiming to be their parents since October [of
19
2016], including more than 100 children under the age of 4.” Caitlin Dickerson,
20
Hundreds of Children Have Been Taken from Parents at U.S. Border, N.Y. Times,
21
Apr. 20, 2018.
22
37.
On May 7, 2018, Defendant Sessions announced “a new initiative” to
23
refer “100 percent” of immigrants who cross the Southwest border for criminal
24
immigration prosecutions, also known as the “zero-tolerance policy.” Defendant
25
Sessions stated that as part of that prosecution, all parents who are prosecuted
26
would be separated from their children. U.S. Dep’t of Justice, Attorney General
27
Sessions Delivers Remarks to the Association of State Criminal Investigative
28
Agencies 2018 Spring Conference (May 7, 2018). The purpose of this new policy
5
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1
was to separate families in the hope that it would deter other families from seeking
2
refuge in the United States.
3
38.
At a Senate Judiciary Committee hearing in May, a deputy chief of
4
Defendant U.S. Customs and Border Protection testified that between May 6 and
5
May 19 alone, a total of 658 children were separated from their family members
6
pursuant to this policy. The Washington Post reported that in the city of McAllen,
7
Texas, 415 children were taken from their parents during a two week period. 1 And
8
in June 2018, the Department of Homeland Security reported that in the six weeks
9
between April 19 and May 31, the administration took almost 2,000 children away
10
from their parents.2
11
39.
Defendant Sessions and other government officials, including
12
Defendant Nielsen, have repeatedly defended the separation of children from their
13
parents in speeches and interviews with various media outlets. Among other
14
justifications for the practice, they have stated that separating families would be a
15
way to “discourage parents from bringing their children here illegally,” 3 and that it
16
would help “deter more movement” to the United States by asylum seekers and
17
other migrants. 4 Administration officials told the New York Times in May, “[t]he
18
president and his aides in the White House had been pushing a family separation
19
policy for weeks as a way of deterring families from trying to cross the border
20
illegally.” 5
21
22
23
24
1
https://www.washingtonpost.com/world/national-security/trumps-zero-toleranceat-the-border-is-causing-child-shelters-to-fill-up-fast/2018/05/29/7aab0ae4-636b11e8-a69c-b944de66d9e7_story.html?utm_term=.d52d94c37d05.
2
https://ca.reuters.com/article/topNews/idCAKBN1JB2SF-OCATP.
25
3
http://transcripts.cnn.com/TRANSCRIPTS/1801/16/cnr.04.html.
26
4
27
28
https://www.cnn.com/2017/03/06/politics/john-kelly-separating-children-fromparents-immigration-border/
5
https://www.nytimes.com/2018/05/10/us/politics/trump-homeland-securitysecretary-resign.html
6
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1
2
40.
Even if the separated child is released from custody and placed in a
community setting or foster care, the trauma of the ongoing separation continues.
3
41.
By taking away their children, Defendants are coercing class members
4
into giving up their claims for asylum and other legal protection. Numerous class
5
members have been told by CBP and ICE agents that they will see their children
6
again sooner if they withdraw their asylum applications and accept earlier
7
deportation. 6
8
9
42.
Many class members have given up their asylum claims and stipulated
to removal as a way to be reunited with their children faster.
10
43.
For class members who have not been coerced into giving up their
11
asylum claims, separation from their children has made those applications much
12
more difficult. Separation prevents parents from helping their children apply for
13
asylum and navigate removal proceedings. Separation also makes it harder for
14
parents to present facts involving their children which support their own asylum
15
claims.
16
44.
The trauma of separation also renders asylum-seeking class members
17
too distraught to effectively pursue their asylum applications. See, e.g., Angelina
18
Chapin, Separated Parents Are Failing Asylum Screenings Because They’re So
19
Heartbroken, Huffington Post (June 30, 2018).7
20
21
22
23
24
25
26
27
28
6
This practice has been widely reported. See, e.g., Dara Lind, Trump Will Reunite
Separated Families—But Only if They Agree to Deportation, Vox.com (June 25,
2018), https://www.vox.com/2018/6/25/17484042/children-parents-separatereunite-plan-trump; Jay Root & Shannon Najmabadi, Kids in Exchange for
Deportation: Detained Migrants Say They Were Told They Could Get Kids Back on
Way Out of U.S., Texas Tribune (June 24, 2018),
https://www.texastribune.org/2018/06/24/kids-exchange-deportation-migrantsclaim-they-were-promised-they-could/?utm_campaign=tribsocial&utm_medium=social&utm_source=twitter&utm_content=1529859032.
7
https://www.huffingtonpost.com/entry/separated-parents-too-grief-stricken-toseek-asylum-experts-say_us_5b379974e4b08c3a8f6ad5d9.
7
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1
45.
Defendants have deported class members without their separated
2
children. Their children are now stranded in the United States alone. Many of these
3
parents are now struggling to make contact with their children, who are being
4
detained thousands of miles away across multiple international borders. See Miriam
5
Jordan, “I Can’t Go Without My Son,” a Mother Pleaded as She Was Deported to
6
Guatemala, N.Y. Times (June 17, 2018). 8
7
46.
On June 20, 2018, President Trump signed an Executive Order (“EO”)
8
purporting to end certain family separations going forward.9 The EO directs DHS to
9
“maintain custody of alien families during the pendency of any criminal improper
10
entry or immigration proceedings.”
11
47.
The EO directs DHS to separate families any time DHS determines
12
that separation would protect “the child’s welfare.” It does not, however, set forth
13
how that standard will be applied. In prior cases the government has applied that
14
standard in a manner that is inconsistent with the child’s best interest, including in
15
Ms. L’s case.
16
17
48.
who were separated prior to its issuance.
18
19
49.
The EO makes no provision for returning separated children to parents
who have been already been deported without their children.
20
NAMED PLAINTIFFS
21
22
The EO makes no provision for reunifying the thousands of families
50.
Ms. L. and her daughter S.S. are one of the many families that have
recently been separated by the government.
23
24
25
26
27
28
8
https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html. See
also Nelson Renteria, El Salvador Demands U.S. Return Child Taken from
Deported Father, Reuters (June 21, 2018), https://www.reuters.com/article/us-usaimmigration-el-salvador/el-salvador-demands-us-return-child-taken-from-deportedfather-idUSKBN1JH3ER.
9
https://www.whitehouse.gov/presidential-actions/affording-congress-opportunityaddress-family-separation/.
8
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1
51.
Ms. L. and her daughter are seeking asylum in the United States.
2
52.
Ms. L. is Catholic and sought shelter in a church until she was able to
3
4
escape the Congo with S.S.
53.
Upon reaching the United States, Ms. L. and S.S. presented themselves
5
at the San Ysidro, California Port of Entry on November 1, 2017. Although their
6
native language is Lingala, they were able to communicate to the border guards that
7
they sought asylum.
8
54.
Based on her expression of a fear of returning to the Congo, Ms. L.
9
was referred for an initial screening before an asylum officer, called a “credible fear
10
interview.” She subsequently passed the credible fear screening but, until March 6,
11
2018, remained detained in the Otay Mesa Detention Center in the San Diego area.
12
55.
On or about November 5, immigration officials forcibly separated
13
then-6 year-old S.S. from her mother and sent S.S. to Chicago. There she was
14
housed in a detention facility for “unaccompanied” minors run by the Office of
15
Refugee Resettlement (ORR).
16
56.
When S.S. was taken away from her mother, she was screaming and
17
crying, pleading with guards not to take her away from her mother. While detained,
18
Ms. L. spoke to her daughter approximately 6 times by phone, never by video. For
19
months she was terrified that she would never see her daughter again. The few
20
times Ms. L. was able to speak to her daughter on the phone, her daughter was
21
crying and scared.
22
23
24
57.
In December, S.S. turned 7 and spent her birthday in the Chicago
facility, without her mother.
58.
In detention, Ms. L. was distraught and depressed because of her
25
separation from her daughter. As a result, she did not eat properly, lost weight, and
26
was not sleeping due to worry and nightmares.
27
28
59.
In one moment of extreme despair and confusion, Ms. L. told an
immigration judge that she wanted to withdraw her application for asylum,
9
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1
realizing her mistake only a few days later. She is seeking to reopen her case before
2
the Board of Immigration Appeals.
3
4
5
6
7
8
9
60.
The government had no legitimate interest in separating Ms. L. and her
61.
There has been no evidence, or even accusation, that S.S. was abused
child.
or neglected by Ms. L.
62.
There is no evidence that Ms. L. is an unfit parent or that she is not
acting in the best interests of her child.
63.
After Ms. L. filed this lawsuit and moved for a preliminary injunction,
10
Defendants abruptly released her from custody on March 6, 2018, due to the filing
11
of the lawsuit. Defendants informed her that she would be released mere hours in
12
advance, with no arrangements for where she would stay. S.S. was released to Ms.
13
L.’s custody several days later. Both are now pursuing their claims for legal
14
protection.
15
64.
Ms. C. and her 14 year-old son, J., are another one of the families who
16
have been separated by the government. Like Ms. L. and her daughter, Ms. C. and
17
her son are seeking asylum in the United States.
18
65.
Ms. C. and J. fled Brazil and came to the United States to seek asylum.
19
A few feet after Ms. C. entered the United States, a border guard approached her,
20
and she explained that she was seeking asylum. Ms. C. subsequently passed a
21
credible fear interview, and was put in removal proceedings, where she is applying
22
for asylum.
23
66.
Despite having communicated her fear of persecution to border guards,
24
the government prosecuted Ms. C. for entering the country illegally, took her son J.
25
away from her, and sent him to a facility for “unaccompanied” children in Chicago.
26
67.
The government continued to separate Ms. C. from her son even after
27
she completed serving her criminal misdemeanor sentence on September 22, 2017,
28
and was sent to an immigration detention facility, the El Paso Processing Center. In
10
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1
early January 2018, she was transferred again, to another immigration facility, the
2
West Texas Detention Facility (also known as Sierra Blanca), but still was not
3
reunited with her son. Even after Ms. C was released from immigration detention
4
on April 5, 2018, the government did not reunify her with her son for another two
5
months, until June 9.
6
68.
While separated from J., Ms. C. was desperate to be reunited with him.
7
She worried about him constantly and did not know when she would be able to see
8
him. They spoke on the phone only a handful of times while they were separated by
9
Defendants.
10
69.
11
from his mother.
12
70.
13
14
15
16
17
J. had a difficult time emotionally during the months he was separated
The government had no legitimate interest for the separation of Ms. C.
and her child.
71.
There is no evidence, or even accusation, that J. was abused or
neglected by Ms. C.
72.
There is no evidence that Ms. C. is an unfit parent or that she is not
acting in the best interests of her child.
18
19
CLASS ALLEGATIONS
73.
Plaintiffs bring this action under Federal Rule of Civil Procedure
20
23(b)(2) on behalf of themselves and a nationwide class of all other persons
21
similarly situated.
22
23
24
25
26
27
74.
Plaintiffs seek to represent the following class:
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.
28
11
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1
2
3
75.
Ms. L. and Ms. C. are each adequate representatives of the proposed
76.
The proposed class satisfies the requirements of Rule 23(a)(1) because
class.
4
the class is so numerous that joinder of all members is impracticable. There are at a
5
minimum hundreds of parents who fit within the class.
6
77.
The class meets the commonality requirements of Federal Rule of
7
Civil Procedure 23(a)(2). The members of the class are subject to a common
8
practice: forcibly separating detained parents from their minor children absent any
9
determination that the parent is unfit or presents a danger to the child. By definition,
10
all class members have experienced that practice, and none has been given an
11
adequate hearing regarding the separation. The lawsuit raises numerous questions
12
of law common to members of the proposed class, including: whether Defendants’
13
family separation practice violates class members’ substantive due process right to
14
family integrity; whether the practice violates class members’ procedural due
15
process rights; whether the practice violates the federal asylum statute; and whether
16
these separations are unlawful or arbitrary and capricious under the APA.
17
78.
The proposed class meets the typicality requirements of Federal Rule
18
of Civil Procedure 23(a)(3), because the claims of the representative Plaintiffs are
19
typical of the claims of the class. Ms. L., Ms. C., and the proposed class members
20
are all individuals who have had or will have their children forcibly taken away
21
from them despite there being no proven allegations of abuse, neglect, or any other
22
danger or unfitness. Plaintiffs and the proposed class also share the same legal
23
claims, which assert the same substantive and procedural rights under the Due
24
Process Clause, the asylum statute, and the APA.
25
79.
The proposed class meets the adequacy requirements of Federal Rule
26
of Civil Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the
27
other members of the class—namely, an order that they be reunified with their
28
children, whether through release or in family detention facilities. In defending their
12
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1
own rights, Ms. L. and Ms. C. will defend the rights of all proposed class members
2
fairly and adequately.
3
80.
The proposed class is represented by counsel from the American Civil
4
Liberties Union Immigrants’ Rights Project and the ACLU of San Diego and
5
Imperial Counties. Counsel have extensive experience litigating class action
6
lawsuits and other complex cases in federal court, including civil rights lawsuits on
7
behalf of noncitizens.
8
9
10
81.
The members of the class are readily ascertainable through
Defendants’ records.
82.
The proposed class also satisfies Federal Rule of Civil Procedure
11
23(b)(2). Defendants have acted on grounds generally applicable to the class by
12
unlawfully separating parents from their young children. Injunctive and declaratory
13
relief is thus appropriate with respect to the class as a whole.
14
CAUSES OF ACTION
15
COUNT I
16
(Violation of Due Process: Right to Family Integrity)
17
18
19
83.
All of the foregoing allegations are repeated and realleged as though
fully set forth herein.
84.
The Due Process Clause of the Fifth Amendment applies to all
20
“persons” on United States soil and thus applies to Ms. L., Ms. C., their children
21
S.S. and J., and all proposed class members.
22
23
24
85.
Plaintiffs, their children, and all class members have liberty interests
under the Due Process Clause in remaining together as families.
86.
The separation of the class members from their children violates
25
substantive due process because it furthers no legitimate purpose and was designed
26
to deter.
27
28
87.
The separation of the class members from their children also violates
procedural due process because it was undertaken without any hearing.
13
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1
COUNT II
2
(Administrative Procedure Act: Arbitrary and Capricious Practice)
3
88.
4
5
6
7
All of the foregoing allegations are repeated and realleged as though
fully set forth herein.
89.
The APA prohibits agency action that is arbitrary and capricious or
violates a person’s legal or constitutional rights.
90.
Defendants’ separation practice is final agency action for which there
8
is no other adequate remedy in a court. Defendants’ decision to separate parents is
9
not tentative or interlocutory, because Defendants have already separated thousands
10
of families and continue to do so, and the policy was announced by high-level
11
officials. And Defendants’ decision to separate gravely impacts class members’
12
rights to remain together as families.
13
91.
Defendants’ separation of Ms. L., Ms. C., and the other class members
14
from their children without any explanation or legitimate justification is arbitrary
15
and capricious and accordingly violates the APA. 5 U.S.C. § 706.
16
92.
Among other things, Defendants failed to offer adequate reasons for
17
adopting their unprecedented new separation practice; they failed to explain why
18
they were not using alternatives to separation, including supervised release and
19
family detention; and for parents like Ms. L., Defendants have never explained why
20
they cannot verify parentage before imposing traumatic separation on both parent
21
and child.
22
COUNT III
23
(Violation of Right to Seek Protection Under the Asylum and Withholding of
24
Removal Statutes, and the Convention Against Torture)
25
26
27
28
93.
All of the foregoing allegations are repeated and realleged as though
fully set forth herein.
94.
Under United States law, noncitizens with a well-founded fear of
persecution shall have the opportunity to apply for asylum in the United States. 8
14
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1
U.S.C. § 1158(a). In addition, noncitizens have a mandatory statutory entitlement to
2
withholding of removal where they would face a probability of persecution if
3
removed to their country of nationality, 8 U.S.C. § 1231(b)(3), or withholding or
4
deferral of removal where they would face a probability of torture. Foreign Affairs
5
Reform and Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G.,
6
Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8
7
U.S.C.§ 1231).
8
95.
9
Class members have a private right of action to challenge violations of
their right to apply for asylum under § 1158(a). That right is not barred by 8 U.S.C.
10
§ 1158(d)(7), which applies to only certain procedural requirements set out in
11
Section 1158(d).
12
96.
Defendants’ separation of families violates federal law that provides
13
for asylum and other protection from removal, as well as their due process right to
14
seek such relief. Separation severely impedes their ability to pursue their asylum
15
and other protection claims in a number of ways, including by denying them the
16
ability to coordinate their applications with their children, present facts related to
17
their children, and creating trauma that hinders their ability to navigate the complex
18
process.
19
97.
The government is also using the trauma of separation to coerce
20
parents into giving up their asylum and protection claims in order to be reunited
21
with their children.
22
PRAYER FOR RELIEF
23
Plaintiffs request that the Court enter a judgment against Defendants and
24
25
award the following relief:
A. Certify a class of all adult parents nationwide who enter the United States
26
at or between designated ports of entry who (1) have been, are, or will be detained
27
in immigration custody by the DHS, and (2) have a minor child who is or will be
28
separated from them by DHS and detained in ORR custody, ORR foster care, or
15
Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1766 Page 18 of 19
1
DHS custody, absent a determination that the parent is unfit or presents a danger to
2
the child.
3
4
5
6
7
8
9
10
11
B. Name Ms. L. and Ms. C. as representatives of the class, and appoint
Plaintiffs’ counsel as class counsel;
C. Declare the separation of Ms. L., Ms. C., and the other class members
from their children unlawful;
D. Preliminarily and permanently enjoin Defendants from continuing to
separate the class members from their children;
E. Order Defendants either to release class members along with their
children, or to detain them together in the same facility;
F. Enjoin Defendants from removing any class members from the country
12
who have received final removal orders until they are reunited with their children,
13
unless the class members knowingly and voluntarily decide that they do not want
14
their children removed with them;
15
G. Enjoin Defendants from removing any class member who received a final
16
removal order prior to the issuance of this Court’s preliminary injunction on June
17
26, 2018, or prior to receiving notice of their rights under the injunction, until they
18
have had an opportunity to consult with class counsel, or a delegate of class
19
counsel, to insure that these class members have knowingly and voluntarily chosen
20
to forego any further challenges to removal, rather than feeling coerced into doing
21
so as a result of separation from their children.
22
H. Require Defendants to pay reasonable attorneys’ fees and costs;
23
I. Order all other relief that is just and proper.
24
25
26
27
28
Dated: July 3, 2018
Respectfully Submitted,
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
/s/Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
16
Case 3:18-cv-00428-DMS-MDD Document 85 Filed 07/03/18 PageID.1767 Page 19 of 19
1
2
3
4
5
6
7
8
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2616
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
9
10
11
12
13
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18
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17
Exhibit 6
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 86 Filed 07/05/18 PageID.1768 Page 1 of 14
1 CHAD A. READLER
Acting Assistant Attorney General
2 SCOTT G. STEWART
3 Deputy Assistant Attorney General
WILLIAM C. PEACHEY
4 Director
5 Office of Immigration Litigation
U.S. Department of Justice
6
WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
8
SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE MURLEY
10
Trial Attorney
11 Office of Immigration Litigation
12
13
16
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 18cv428 DMS MDD
MS. L, et al.,
Petitioners-Plaintiffs,
17
18
vs.
19 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
20
Respondents-Defendants.
21
22
23
24
25
26
27
28
30
ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
California Bar No. 94918
Office of the U.S. Attorney
880 Front Street, Room 6293
San Diego, CA 92101-8893
619-546-7125
619-546-7751 (fax)
Attorneys for Federal Respondents-Defendants
14
15
U.S. Department of Justice
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962
RESPONDENTS’ NOTICE
REGARDING COMPLIANCE AND
REQUEST FOR CLARIFICATION
AND/OR RELIEF
Case 3:18-cv-00428-DMS-MDD Document 86 Filed 07/05/18 PageID.1769 Page 2 of 14
1
2
I.
NOTICE REGARDING COMPLIANCE
On June 26, 2018, this Court issued orders granting Plaintiffs’ motion to
3 certify a class, ECF No. 82, and ordering a preliminary injunction on behalf of that
4
class, ECF No. 83. After receiving the Court’s preliminary-injunction order,
5
6 Defendants immediately acted to implement and comply with it. As a result of that
7
8
9
prompt action, Defendants believe that they are in compliance with all aspects of
the Court’s injunctive order regarding the forward-looking policies on separation
10 and communication. Defendants have been working diligently on complying with
11
12
13
the Court’s reunification directives. Defendants understand the urgent concerns
underpinning the Court’s order. Defendants have dedicated immense resources and
14 effort to reunifying families, and personnel at the highest levels of the agencies
15
16
17
have been involved in implementing the Court’s directives. Defendants are
submitting declarations to explain the extensive efforts of the U.S. Department of
18 Health and Human Services (“HHS”) (declaration attached hereto) and U.S.
19
20
Immigration and Customs Enforcement (“ICE”) (declaration to follow) to identify
21 class members and their children and to reunify class members with their children.
22
23
24
In the preliminary-injunction order, the Court set a status conference for July
6. Id. Defendants have plans to comply with the injunction, and are prepared to
25 discuss those plans at the conference. To fully implement these plans, however,
26 Defendants may need clarification on or relief from certain parts of the order, so
27
28
30
that Defendants can safely reunite families. Among other issues, Defendants need
1
18cv428 DMS MDD
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1 this Court’s guidance on issues that arise because of HHS’s understanding of its
2 statutory obligations to ensure the safety of children before transferring them out of
3
HHS custody. The processes that HHS has developed in order to fulfill its statutory
4
5 obligations are critical to protecting children against the well-documented risk of
6
7
8
trafficking or abuse, but they also require HHS to follow procedures that are timeconsuming, even in this unique context. Defendants thus seek confirmation about
9 the Court’s intent in its order as it relates to those procedures and, as appropriate,
10
11
12
relief from the Court’s deadlines.1 Defendants also seek clarification regarding the
definition of the class certified by this Court.
13
II.
14
15
16
17
REQUEST FOR CLARIFICATION AND/OR RELIEF
The Government respectfully requests the Court’s prompt resolution of
several critical implementation issues, at or soon after the July 6 status conference.
The Government anticipates that additional clarification or relief may be requested
18 as its implementation of the Court’s injunction proceeds. The Government will
19
20
bring any additional such requests to the Court’s attention promptly.
21
22
23
24
25
The Government also has advised the court in Flores v. Sessions, No. 85-4544
26 (C.D. Cal.), that the Flores Settlement Agreement permits the Government to use
ICE family residential centers to hold families together while in Government
27 custody. See Flores, ECF No. 447 (attached).
28
30
1
2
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1
2
3
4
A. Releasing Children From HHS Custody.
As this Court is aware, the class definition includes “[a]ll adult parents who
enter the United States,” whether at or between ports of entry, “who (1) have been,
5 are, or will be detained in immigration custody by the DHS, and (2) have a minor
6
7
8
child who is or will be separated from them by DHS and detained in ORR custody,
ORR foster care, or DHS custody.” Class-Certification Order, ECF No. 82 at 17.
9 The class excludes parents if there is “a determination that the parent is unfit or
10
11
12
presents a danger to the child.” Id. It also excludes parents “with criminal history
that prevents them from being released into the community along with their child
13 or housed together in a [family] detention center,” parents “with some kind of
14
15
16
communicable disease” raising safety concerns, or “parents who fall within the
[Family Separation Executive Order].” Id. at 4 n.5, 10. The Court’s preliminary
17 injunction, in turn, directs Defendants to “reunify all Class members with their
18
19
minor children” within 14 days for children under age 5 and within 30 days for
20 minor children age 5 and over, “[u]nless there is a determination that the parent is
21 unfit or presents a danger to the child, or the parent affirmatively, knowingly, and
22
23
voluntarily declines to be reunited with the child.” Preliminary-Injunction Order,
24 ECF No. 83 at 23 ¶ (3).
25
26
27
As explained in the attached declaration of Jonathan White, HHS
understands the Court’s order in light of its statutory mission, which requires HHS
28
30
3
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1 to ensure child welfare and the safety of minors released from its custody. More
2 specifically, considering the order in light of its statutory obligations relating to the
3
release of unaccompanied alien children (UACs), see 6 U.S.C. § 279; 8 U.S.C.
4
5 § 1232, HHS understands the order to require three distinct findings before a child
6
7
8
can be released.
First, to confirm that an individual is, in fact, a class member as well as a
9 “parent” within the meaning of 6 U.S.C. § 279(g)(2), HHS first must determine
10
11
12
that the individual is the parent of the child with whom he or she seeks to be
reunified. White Declaration ¶¶ 20-26. HHS believes that this requirement applies
13 regardless of whether the parent is in federal custody or has been released into the
14
15
16
interior. To determine parentage, HHS is using DNA swab testing because it is a
reasonably prompt and efficient method for determining biological parentage in a
17 significant number of cases. White Declaration ¶¶ 21, 25. HHS is working
18
19
diligently to minimize the burdens of confirming parentage, and is expediting
20 DNA verification. White Declaration ¶¶ 20-24. But given the possibility of false
21 claims of parentage, confirming parentage is critical to ensure that children are
22
23
returned to their parents, not to potential traffickers. White Declaration ¶ 25.
24 Although HHS is moving expeditiously to undertake these DNA tests, that process
25 takes meaningful time, even when it is expedited—as this Court has implicitly
26
27
recognized. See Order on Motion to Dismiss 3-4, 8 (noting that on March 8, 2018,
28
30
4
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1 the Court ordered that a DNA test for Ms. L. be completed by March 14—which
2 the Court described as “order[ing] an expedited DNA test”).
3
In many cases involving parents who are detained, this process will not
4
5 interfere with the Government’s ability to reunify families within the timelines
6
7
8
provided by the Court. In some cases, however, this process may not be conclusive
in establishing parentage, and further evaluation of available documentation may
9 be required. White Declaration ¶¶ 20, 45. Confirming parentage for adults who
10
11
12
have already been released may also take additional time, including for the parent
to appear for DNA testing or other confirmation. In those cases, it may be harder to
13 reunify some families within the Court’s timeline.
14
15
16
Accordingly, the Government respectfully requests clarification from the
Court as to whether the process for confirming parentage implemented by HHS is
17 consistent with the Court’s understanding of its mandate, and seeks clarification
18
19
that in cases where parentage cannot be confirmed quickly, HHS will not be in
20 violation of the Court’s order if reunification occurs outside of the timelines
21 provided by the Court. The Government can for the Court’s consideration prepare
22
23
24
a proposal for an alternative timeline.
Second, to confirm that an individual is neither “unfit [n]or presents a danger
25 to the child,” that the parent is “available to provide care and physical custody,” 6
26
27
U.S.C. § 279(g)(2), and that the parent “has not engaged in any activity that would
28
30
5
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 86 Filed 07/05/18 PageID.1774 Page 7 of 14
1 indicate a potential risk to the child,” 8 U.S.C. §1232(c)(3)(A), ICE and HHS must
2 confirm whether an individual has any criminal history, including a history
3
indicative of abuse. White Declaration ¶¶ 27, 29. To expedite those determinations
4
5 in the unusual context of reunification following government separation, the
6
7
8
agencies are relying on summaries of criminal background checks run by ICE,
which are in turn shared with HHS. White Declaration ¶ 29. That process is not
9 currently anticipated to delay reunification.
10
11
12
Third, before releasing any child to a class member who is not in
government custody, HHS understands that the determination that a parent is not
13 “unfit or presents a danger to the child,” Preliminary-Injunction Order at 23 ¶ 2,
14
15
16
must be read in conjunction with the TVPRA, 8 U.S.C. § 1232, which imposes
additional safety requirements before “plac[ing]” a child with someone outside
17 federal custody. Specifically, a UAC “may not be placed with a person or entity
18
19
unless [HHS] makes a determination that the proposed custodian is capable of
20 providing for the child’s physical and mental well-being,” which must include “an
21 independent finding that the individual has not engaged in any activity that would
22
23
indicate a potential risk to the child.” 8 U.S.C. § 1232(c)(3)(A). HHS believes that,
24 in the context of reunifying a parent with a child following government separation,
25 when the parent has since been released into the interior and the child remains in
26
27
HHS custody, HHS remains obligated to apply existing HHS procedures under the
28
30
6
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 86 Filed 07/05/18 PageID.1775 Page 8 of 14
1 TVPRA. See White Declaration ¶¶ 33-44 for an explanation of such procedures.
2 The processes involved in applying these provisions have developed to ensure that
3
HHS does not inadvertently release a child in its custody into a situation that will
4
5 expose him or her to trafficking or abuse. White Declaration ¶¶ 45-46.
6
7
8
HHS has worked diligently to expedite these processes to enable the
Government to comply with the timelines in the Court’s order. HHS anticipates,
9 however, in some instances it will not be able to complete the additional processes
10
11
12
within the timelines the Court prescribed, particularly with regard to class
members who are already not in Government custody (e.g., because they have
13 previously been paroled or released). White Declaration ¶¶ 45-46.
14
15
16
Accordingly, HHS seeks clarification from this Court that it intended for
HHS to follow such procedures in the somewhat unique context of reunification
17 following government separation, and in particular for reunification with class
18
19
members who have been released into the interior. If the Court intended for HHS
20 to follow a different approach, the Government requests clarification regarding the
21 precise inquiry that HHS should be making in these circumstances.2
22
23
24
25
26
27
HHS’s aim it to comply with the Court’s injunction, while also following its
normal processes under the TVPRA that HHS has implemented to ensure the
safety of children upon placement by HHS with a parent or other sponsor.
Accordingly, HHS asks that if the Court concludes that HHS must truncate those
normal TVPRA processes to meet court-ordered deadlines, then the Court should
so order in a manner that provides HHS full clarity with regard to its court-ordered
obligations.
2
28
30
7
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1
Further, if the Court concludes that HHS is properly proceeding in light of
2 the Court’s order and the relevant statutory provisions, then HHS seeks partial
3
relief from the timelines in the Court’s order to allow HHS to comply with these
4
5 obligations and to safely achieve the reunifications that the order directs,
6
7
8
particularly for parents who have previously been released. The Government does
not wish to unnecessarily delay reunifications or burden class members. At the
9 same time, however, the Government has a strong interest in ensuring that any
10
11
12
release of a child from Government custody occurs in a manner that ensures the
safety of that child. The Government can, for the Court’s consideration, prepare a
13 proposal for an alternative timeline that that takes HHS’s procedures into account.
14
15
16
Thus, Defendants seek clarification to ensure that the Government can
comply with and implement the Court’s order consistent with federal laws
17 protecting child safety in implementing reunification plans.
18
19
20
21
B. ICE’s Obligations Under Paragraph (1) Of The Preliminary
Injunction.
As described in the Government’s declarations, the reunification process
22 implemented by ICE and HHS for parents who are now in ICE custody requires
23 extensive and careful coordination between the two agencies so that HHS can
24
25
reunify the child with his or her parent in ICE custody. White Declaration ¶¶ 13-
26 14, 29. HHS is able to reunify families in such cases much faster than it is able to
27 do so for class members who have already been released from ICE custody. Id.
28
30
8
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Case 3:18-cv-00428-DMS-MDD Document 86 Filed 07/05/18 PageID.1777 Page 10 of 14
1
Paragraph (1) of the Court’s preliminary-injunction order prohibits ICE
2 “from detaining Class Members in DHS custody without and apart from their
3
minor children.” Preliminary-Injunction Order at 22 ¶ (1). Consistent with that
4
5 command, reunification could occur in ICE custody in a family residential center,
6
7
8
or by reunifying the parent and child at release. But this paragraph could
potentially be read to require that if HHS has not been able to reunify a child with a
9 parent in ICE custody by the deadlines ordered by the Court, ICE would still be
10
11
12
required to release the parent from custody before that deadline even without
reunification. Such a requirement would, in most cases, delay reunification because
13 release of a parent before HHS completes its suitability determination would
14
15
16
trigger additional obligations for HHS to comply with the procedures it has
developed to ensure safe release in accordance with the TVPRA. White
17 Declaration ¶¶ 33-45.
18
19
If, as discussed above, the Court determines that HHS should continue to
20 follow its TVPRA procedures in making its release decisions, then the Government
21 further asks the Court to clarify whether: (a) Paragraph (1) of the preliminary22
23
injunction order requires that ICE release the parent by the compliance deadlines
24 even if HHS has not completed its processes and where such release might slow
25 reunification; or (b) ICE may continue to hold parents beyond the current deadlines
26
27
until HHS’s processes are complete.
28
30
9
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1
2
3
4
5
6
7
8
C. Scope Of The Class Definition.
The Government also respectfully requests clarification on the scope of the
Court’s class definition.
First, as issued, the class definition contains no date limitations. It thus could
be read to cover individuals who were separated from their children long before
this case began, and long before the May 2018 policy that prompted the Court’s
9 injunction. The absence of any date limitations, moreover, makes it difficult for the
10
11
12
Government to ensure that it has identified all class members.
Accordingly, the Government respectfully requests that the Court clarify a
13 start date for separations that would result in class membership for the separated
14
15
16
parent. The Government proposes that the Court use March 9, 2018, as the starting
point for the reunification requirement, because that is the date of filing for
17 Plaintiffs’ amended complaint which added the class claims in this case.
18
19
Relatedly, the class definition does not specify whether it includes parents
20 who had been removed from the United States prior to the issuance of the Court’s
21 class-certification order. The order itself does not address such individuals, nor did
22
23
either named Plaintiff experience such a situation. Moreover, the timelines for the
24 relief ordered by the Court could not encompass such a scenario given the
25 complexities involved in locating individuals who have been removed, determining
26
27
whether they wish to be reunified with their child, and facilitating such a
28
30
10
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1 reunification outside of the United States. Accordingly, the Government requests
2 that the Court clarify that such individuals are not included within the class
3
definition or, if the Court believes that they are, that the Court allow the
4
5 Government the opportunity to brief the matter or that the Court at least provide
6
7
8
the Government relief from the timelines in the order with regard to the
reunification of such individuals, and instead allow the Government the
9 opportunity to propose a timeline to pursue reunifications for removed individuals.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
11
18cv428 DMS MDD
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1 DATED: July 5, 2018
Respectfully submitted,
2
CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
3
4
5
6
7
8
/s/ Sarah B. Fabian
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
(202) 532-4824
(202) 616-8962 (facsimile)
sarah.b.fabian@usdoj.gov
9
10
11
12
13
14
15
16
17
ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
18
19
20
21
Attorneys for Respondents-Defendants
22
23
24
25
26
27
28
30
12
18cv428 DMS MDD
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1
UNITED STATES DISTRICT COURT
2
SOUTHERN DISTRICT OF CALIFORNIA
3
4 MS. L., et al.
5
6
7
Case No. 18-cv-428 DMS MDD
Petitioner-Plaintiff,
CERTIFICATE OF SERVICE
vs.
8 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
9
10
Respondents-Defendants.
11
12 IT IS HEREBY CERTIFIED THAT:
13
I, the undersigned, am a citizen of the United States and am at least eighteen years
14
of age. My business address is 450 Fifth Street, NW, Washington, DC 20001. I am
15
not a party to the above-entitled action. I have caused service of the accompanying
16
RESPONDENTS’ NOTICE REGARDING COMPLIANCE AND REQUEST FOR
17
CLARIFICATION AND/OR RELIEF on all counsel of record, by electronically
18
filing the foregoing with the Clerk of the District Court using its ECF System, which
19
electronically provides notice.
20
I declare under penalty of perjury that the foregoing is true and correct.
21
DATED: July 5, 2018
22
/s/ Sarah B. Fabian
SARAH B. FABIAN
23
Senior Litigation Counsel
24
Office of Immigration Litigation
Civil Division, U.S. Department of
25
Justice
26
Attorney for Respondents-Defendants
27
28
30
13
18cv428 DMS MDD
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1 CHAD A. READLER
2
3
4
5
6
7
8
9
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director, Office of Immigration Litigation (OIL)
U.S. Department of Justice
WILLIAM C. SILVIS
Assistant Director, OIL District Court Section
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
U.S. Department of Justice
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962
10 ADAM L. BRAVERMAN
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12
13
14
15
16
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
California Bar No. 94918
Office of the U.S. Attorney
880 Front Street, Room 6293
San Diego, CA 92101-8893
619-546-7125
619-546-7751 (fax)
Attorneys for Federal Respondents-Defendants
17
UNITED STATES DISTRICT COURT
18
SOUTHERN DISTRICT OF CALIFORNIA
19
20 MS. L, et al.,
Petitioners-Plaintiffs,
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22
Case No. 18cv428 DMS MDD
vs.
23 U.S. IMMIGRATION AND CUSTOMS
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25
26
27
28
ENFORCEMENT, et al.,
Respondents-Defendants.
DECLARATION OF
JONATHAN WHITE
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1
I, Jonathan White, for my declaration pursuant to 28 U.S.C. § 1746, hereby state and depose
2 as follows, based on my personal knowledge and information provided to me in the course of my
3 official duties:
4
5
6
7
1.
I am a career officer in the United States Public Health Service Commissioned Corps
and have served in the Department of Health & Human Services in three Administrations. I am
presently assigned to the Office of the Assistant Secretary for Preparedness and Response, and
8 previously served as the Deputy Director of the Office of Refugee Resettlement for the
9 Unaccompanied Alien Children’s Program.
10
2.
I have been involved directly in the actions which HHS has taken to implement
11 Executive Order (EO) 13841 (“Affording Congress an Opportunity to Address Family Separation”)
12
13
14
15
and comply with the orders in Ms. L., et al., v. U.S. Immigration and Customs Enforcement, et al.,
Case No. 18-cv-428 (S.D.Cal.). President Trump issued EO 13841 on June 20, 2018, and the Court
issued its orders on June 26, 2018.
16
KEY HHS ACTIONS ON REUNIFICATION
17
3.
Focus on Child Safety: The Secretary of Health and Human Services has directed
18 HHS to take all reasonable actions to comply with the Court’s orders and to prioritize child safety
19 and well-being when doing so.
20
21
22
23
4.
Deployment of Additional Personnel: On June 22, 2018, the Secretary of Health and
Human Services directed ASPR to deploy personnel and resources to help the Office of Refugee
Resettlement (ORR) of the Administration for Children and Families (ACF) of HHS reunify children
24 in ORR custody with parents.
25
5.
Determination of Class Members: HHS has worked closely with U.S. Department of
26 Homeland Security (DHS)—including U.S. Customs and Border Protection (CBP) and U.S.
27
28
Immigration and Customs Enforcement (ICE)—to try to determine all individuals who meet the
1
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1 Court’s criteria for class members. The determination of class membership involves real-time, inter2 agency collection and analysis of facts and data to: verify parentage; determine location of DHS
3 apprehension and separation; determine parental fitness; and evaluate whether reunification would
4
5
6
7
present a danger to the child. Class membership is not static; it can change due to transfers of putative
parents from ICE to the Bureau of Prisons (BOP) (or vice-versa), and newly-acquired information.
6.
Facilitation of Regular Communication Between Class Members and Children in ORR
8 Custody: HHS has deployed field personnel to help putative class members communicate with
9 children in ORR care.
10
DEPLOYMENT OF ADDITIONAL PERSONNEL
11
7.
12
13
14
15
As noted above, on June 22, 2018, the Secretary of Health and Human Services
activated ASPR to augment the resources that ORR had already devoted to expeditiously discharge
children from ORR care. ORR has had to continue performing core program functions for minors
who cross the border without parents (and who far outnumber separated children in ORR care). The
16 augmenting of resources has helped ORR continue performing those core functions.
17
8.
The activating of ASPR included the Secretary’s Operation Center (SOC), which is a
18 command center that operates 24 hours per day, 365 days per year. The mission of the SOC is to
19 synthesize critical public health and medical information for the U.S. Government. While typically
20
21
22
23
used for a public health emergency or natural disaster (e.g., Hurricane Maria in Puerto Rico), the SOC
can also serve as a communications hub for large, data-intensive, inter-departmental operations.
9.
ASPR activated an Incident Management Team. As of July 3, 2018, the Incident
24 Management Team had 33 members (in addition to the permanent staff of the SOC). It works full25 time to provide logistical and administrative support.
26
27
28
10.
ASPR has also dispatched approximately 115 personnel to the field to engage directly
with putative class members in DHS custody. Those personnel—who are organized into four field
2
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1 teams— are from ACF, ASPR, the US Public Health Service Commissioned Corps, and the National
2 Disaster Medical System’s Disaster Medical Assistance Team (DMAT). The DMAT is a cadre of
3 trained health and medical professionals and para-professionals that augments ASPR’s capabilities
4
5
6
7
during public emergencies.
11.
Finally, HHS has executed a contract with BCFS Health and Human Services, Inc.
(“BCFS”), to provide an additional 100 reunification case managers, plus approximately 40 staff for
8 logistical and administrative support. HHS has trained the case managers from BCFS, and is
9 deploying them on Thursday, July 5, and Friday, July 6, 2018, to augment existing field operations.
10 They too will engage directly with putative class members in ICE custody.
11
12
13
14
15
DETERMINATION OF CLASS MEMBERS
12.
ORR has a process for placing unaccompanied alien children (UAC) with parents or
other sponsors that is designed to comply with the 1997 Flores Settlement Agreement, the Homeland
Security Act of 2002 (HSA), and the William Wilberforce Trafficking Victims Protection
16 Reauthorization Act of 2008 (TVPRA), as described in more detail below. This process ensures the
17 care and safety of children who are apprehended in the United States and then referred to HHS as
18 unaccompanied children.
19
20
21
22
23
13.
HHS has modified and expedited its ordinary process so that it can determine class
membership using the Court’s criteria and, to the extent possible, reunify class members and their
children within the Court’s deadlines.
14.
Under its modified process, HHS identifies putative class members with children in
24 ORR custody and verifies parentage. Also, HHS determines the putative class member’s immigration
25 history to confirm where they were apprehended and separated from their child. Finally, HHS
26 collects and analyzes criminal, medical (e.g., communicable disease), and other information to
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28
3
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1 determine the parental fitness of the putative class member and confirm that reunification would not
2 present a danger to the child. HHS generally performs these checks concurrently.
3
4
5
6
7
8
15.
Putative class members who are not verified as parents are not included in the class
by HHS. Putative class members apprehended in the interior, who have relevant criminal history,
have a communicable disease, or are otherwise parentally unfit or present a danger to a child, are not
included in the class either.
16.
In general, HHS knows the names and locations of all children who are in ORR care
9 and custody at all times because ORR maintains that data in its online case management portal. The
10 ORR portal includes data about each child that DHS provided when DHS transferred the child to
11 ORR custody. It also includes health and social data collected or entered by ORR personnel, grantees,
12
13
14
15
or contractors. While the ORR portal may contain some data about the child’s parents, the ORR
portal was not designed to determine class membership or facilitate reunification under the criteria
and deadlines established by the Court’s Order. Some of the data required to determine the class
16 membership of a putative class member resides with DHS, while HHS must collect some data directly
17 from the putative class member.
18
17.
The data collection, sharing, and analysis required to determine class membership is
19 extraordinarily time and resource intensive. There are myriad reasons for this. For instance, DHS
20
21
22
23
has different information systems, and those systems were not designed to neatly capture and readily
share all of the data required to determine class membership. The departments must therefore map
their data manually. Also, the class potentially encompasses parents who were separated from their
24 children before the Administration implemented the zero-tolerance policy, and those groups may not
25 have received the same family unit identifiers from DHS as the groups separated after the
26 Administration implemented the zero-tolerance policy. Absent reliable and consistent identifiers,
27
28
HHS must glean the separations of class members and children (and related details) from the case
4
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1 management files on the ORR portal. On top of these variables, a parent’s class membership can
2 change if the parent is transferred between ICE and the Bureau of Prisons (BOP), or if information
3 obtained directly from the parent affects the class membership analysis.
4
5
6
7
18.
To ensure that every separated child in ORR custody who belongs to a class member
is identified and reunified, HHS has had each grantee at one of ORR’s approximately 110 shelters
certify the separated children who the grantee reasonably believes are in its care. HHS has also
8 conducted a full manual review of the case management file for each one of the approximate 11,800
9 children in ORR custody—the substantial majority of whom were not separated from a putative
10 parent at the border—to confirm or rule out any indicia of separation. The manual review was
11 conducted by dozens of HHS personnel working nights and over the weekend. The results of both
12
13
14
15
the manual review and the grantee certifications are undergoing validation.
19.
As of July 5, 2018, we have identified approximately 101 minors under age 5, within
ORR care, whose records contain indicia of separation. Class membership analysis for putative class
16 members associated with the larger group of minors 5 through 18 is ongoing. Also, some of the
17 identified minors may have been separated prior to crossing the border, or there may be other factors
18 that need to be explored that would not make their parents members of the class. HHS has received
19 confirmation from DHS that approximately 40 parents of children in the under-5 group are in DHS
20
21
22
custody and another 9 are in U.S. Marshal’s custody. The class membership analysis for putative
class members associated with the remaining children in the group of 101 is ongoing.
23
Verifying Parentage
24
20.
HHS is using DNA testing to try to verify parentage of all putative class members, as
25 well as all children in ORR custody who ORR reasonably believes were separated from a putative
26 class member. HHS is conducting the DNA testing concurrent with collecting and reviewing
27
28
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1 documentation of parentage, interviewing putative class members and family members, and
2 observing communications or interactions between putative class members and children.
3
4
5
6
7
21.
DNA testing is a faster but costlier method for confirming parentage than collecting
and assessing documentation and anecdotal information. When ORR implements its safety and
suitability policies in the ordinary course of administering its program, it confirms parentage through
DNA testing as a last resort. HHS has dual-tracked global DNA testing to ensure child safety and to
8 expedite parentage verifications to try to comply with the deadlines in the Court’s order.
9
22.
ORR grantees are swabbing the cheeks of the children in ORR custody, while DHS
10 personnel or the field teams deployed by HHS are swabbing the cheeks of the putative class members
11 in ICE custody. The cheek swabs are then sent to a third-party laboratory services provider to
12
13
14
15
complete the DNA testing.
The results are then transmitted electronically to the Incident
Management Team at the SOC, which shares them with the grantees. HHS will use the results only
for verifying parentage.
23.
16
The DNA testing process takes nearly one week to complete for each putative class
17 member and child. Once HHS has made a data match between a putative class member and child, it
18 may take the field teams and grantees up to two days to further validate the match and swab cheeks.
19 It may then take up to three days for laboratory services provider to collect the sample and conduct
20
21
22
23
24
the test. Once the laboratory services provider completes the testing, it may take up to 24 hours for
the Incident Management Team to receive and transmit the results back to the grantees and field
teams.
24.
The field teams are concurrently facilitating the completion of reunification
25 applications by putative class members. The packets seek medical and social data that bear on the
26 criteria for class membership, including parentage, parental fitness, and child endangerment. A copy
27
28
of a blank reunification application is attached at Tab 1.
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1
25.
My opinion is that DNA testing is the method of parental verification most likely to
2 protect children from harm given the compressed timeframe imposed by the court’s order. The risk
3 of placing children with adults who are not their parents is a real and significant child welfare concern
4
5
6
7
for HHS because the experience of ORR is that children are smuggled across the border or trafficked
by adults who fraudulently hold themselves out as parents. The children may not disclose the
situation to CBP, ICE, or ORR because they may fear retaliation by the adults who brought them
8 across the border. In some instances, they may fear retaliation by their parents in their home country,
9 who have given them to the smuggler or trafficker so that they may earn money in the United States.
10 My opinion is that DNA testing mitigates the risk of the United States Government placing children
11 back with adults who are not their parents and who would endanger them.
12
13
14
15
26.
If, however, HHS concludes that it can reliably and more quickly determine the
parentage of a putative class member based on documentation or anecdotal information collected
from the putative class member, then HHS will make that determination to try to comply with the
16 Court’s reunification deadlines.
17
Background Checks for Parental Fitness
18
27.
HHS is assessing the backgrounds of putative class members by reviewing summaries
19 of prior criminal background checks provided by ICE. Already such background check information
20
21
22
23
has come back with two results that show that two putative parents of children under five may
endanger the child (charges of kidnapping/rape and child cruelty), and 12 more need to be further
assessed.
24
Parental Fitness and Child Endangerment
25
28.
As discussed below, HHS’ ordinary process for placing children with sponsors
26 involves a safety and suitability analysis, as well as a home study in certain circumstances. These
27
28
checks can sometimes take weeks or months.
7
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1
29.
HHS has modified and expedited its ordinary process when further assessing parental
2 fitness and potential child endangerment for a potential reunification with a putative class member in
3 DHS custody. For potential reunifications with putative class members in DHS custody, any further
4
5
6
7
assessment of parental fitness and potential child endangerment involves only the review of the case
management records (which includes, for example, case review notes and other electronic files) and
the putative class member’s completed reunification packet for indicia of child abuse or neglect. If
8 there are no such indicia, then HHS will not conduct further assessment.
9
30.
When further assessing parental fitness and potential child endangerment for potential
10 reunifications of putative class members who are no longer in DHS custody, HHS is modifying and
11 expediting its ordinary process on a case-by-case basis to try to comply with court-ordered deadlines
12
13
14
15
in ways that do not endanger child welfare.
31.
For example, when placing a child with a putative parental sponsor who is no longer
in DHS custody, HHS would ordinarily verify the potential sponsor’s residential address and conduct
16 background checks of adult cohabitants to try to ensure that the potential sponsor is capable of
17 providing shelter and care – and that the potential sponsor’s cohabitants do not endanger the child—
18 after placement. To try to comply with the Court’s deadlines, HHS will likely need to streamline its
19 address verification process for putative class members. But HHS does not believe that it can
20
21
22
23
24
streamline background checks.
32.
UAC sponsors have always included the parents of UACs , and close to half of the
sponsors to whom ORR ordinarily releases UACs are parents.
33.
The Flores settlement agreement (“FSA”) prioritizes release to parents, if they are
25 available, and also specifically provides for ORR to ensure the suitability of such releases, and to
26 protect the child from danger. See FSA paragraphs 14-18.
27
28
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34.
1
The FSA describes a variety of criteria to consider before the government releases a
2 UAC to a parent (or other sponsor). See FSA paragraphs 14-18. These factors include:
3
•
•
4
5
Verifying the identity of the parent;
Verifying the identity and employment of the individuals offering support to the parent
and minor;
6
7
•
Receiving information from their address and any future change of address;
8
•
Ensuring the parent will provide for the minor’s physical, mental, and financial well-
9
being;
10
•
11
standard of care he would receive;
12
•
13
15
•
16
20
21
Requiring the parent to ensure the minor’s presence at all future immigration
proceedings.
17
19
Interviewing the members of the household where the parent will live with the child,
and in some cases a home visit; and
14
18
Investigating the living conditions in which the minor would be placed and the
35.
Furthermore, under the HSA and TVPRA, HHS has developed a series of safety and
suitability requirements that ensure child welfare, upon release, is protected. These policies, many
of which were refined after Congressional oversight, are contained in Section 2 of the ORR Policy
Guide: Children Entering the United States Unaccompanied, available at:
22 https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section23 2#2.1 .
24
36.
The policies include identifying the sponsor; submitting the application for release
25 and supporting documentation; evaluating the suitability of the sponsor, including verification of
26
27
28
the sponsor’s identity and relationship to the child; background checks; and in some cases home
studies; and planning for post-release.
9
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1
37.
ORR requires all potential sponsors, including parents, to undergo fingerprinting in
2 order to ensure the safety and suitability of release. The fingerprints are used to run background
3 checks of databases involving criminal history. ORR also checks sexual abuse information, child
4
5
6
7
abuse information, and other public record sources.
38.
ORR also requires that, if there are other adults living in the household with a
sponsor (including a parent), those adults also undergo background checks. This ensures the child
8 will not be endangered if, for example, those household members have a history of child abuse or
9 sexual abuse that ORR must further consider before approving the release.
10
39.
ORR also requires that sponsors, including parents, identify an alternative caregiver,
11 who will be able to provide care in the event the original sponsor is unavailable. These adult
12
13
14
15
caregivers must also be identified and undergo background checks.
40.
To ensure safety and suitability for children, ORR considers the following factors
when evaluating release of a UAC to parents, other family members, and other potential sponsors in
16 the community:
17
18
19
20
21
22
23
24
25
26
a. The nature and extent of the sponsor’s previous and current relationship with the child or
youth and the unaccompanied alien child’s family, if a relationship exists.
b. The sponsor’s motivation for wanting to sponsor the child or youth.
c. The UAC’s parent or legal guardian’s perspective on the release to the identified
potential sponsor (for cases in which the parent or legal guardian is not the sponsor).
d. The child or youth’s views on the release and whether he or she wants to be released to
the individual.
e. The sponsor’s understanding of the unaccompanied alien child’s needs, as identified by
ORR and the care provider.
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28
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1
f. The sponsor’s plan to provide adequate care, supervision, access to community
2
3
resources, and housing.
g. The sponsor’s understanding of the importance of ensuring the unaccompanied alien
4
child’s presence at all future hearings or proceedings, including immigration court
5
proceedings, and the sponsor’s receipt of Legal Orientation Program for Custodians
6
information that ORR provides to all potential sponsors.
7
8
h. The linguistic and cultural background of the child or youth and the sponsor, including
9
10
cultural, social, and communal norms and practices for the care of children.
i. The sponsor’s strengths, resources, and mitigating factors in relation to any risks or
11
special concerns of the child or sponsor, such as a criminal background, history of
12
13
14
substance abuse, mental health issues, or domestic violence and child welfare concerns.
j. The unaccompanied alien child’s current functioning and strengths in relation to any risk
15
factors or special concerns, such as children or youth who are victims of human
16
trafficking; are a parent or are pregnant; have special needs, disabilities or medical or
17
mental health issues; have a history of criminal, juvenile justice, or gang involvement; or
18
a history of behavioral issues.
19
20
21
22
23
41.
In certain cases, the TVPRA requires a home study, prior to release. 8 U.S.C. §
1232(c)(3)(B) states: “A home study shall be conducted for a child who is a victim of a severe form
of trafficking in persons, a special needs child with a disability (as defined in section 12102 of title
42), a child who has been a victim of physical or sexual abuse under circumstances that indicate
24 that the child's health or welfare has been significantly harmed or threatened, or a child whose
25 proposed sponsor clearly presents a risk of abuse, maltreatment, exploitation, or trafficking to the
26 child based on all available objective evidence.” In circumstances in which a home study is not
27
28
required by the TVPRA or ORR policy, the Case Manager and an independent third party Case
11
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1 Coordinator may recommend that a home study be conducted if they agree that the home study will
2 provide additional information required to determine that the sponsor is able to care for the health,
3 safety and well-being of the child.
4
5
6
7
42.
ORR does not disqualify potential sponsors on the basis of their immigration status,
but does require sponsors (including parents) to complete a sponsor care plan. Among other things,
the care plan identifies the adult caregiver who will act for the sponsor, should the sponsor become
8 unavailable, and how such caregiver will be notified of such situation. It also includes a safety plan
9 in some circumstances.
10
43.
Throughout the release process, care providers work with the child and sponsor so
11 that they can plan for the child’s after care needs. This involves working with the sponsor and the
12
13
14
15
unaccompanied alien child to prepare them for post-ORR custody, assess the sponsor’s ability to
access community resources, and provide guidance regarding safety planning, sponsor care plans,
and accessing services for the child. The care provider explains the U.S. child abuse and neglect
16 standards and child protective services that are explained on https://www.childwelfare.gov, human
17 trafficking indicators and resources, and basic safety and how to use the 9-1-1 number in
18 emergency situations.
19
20
21
22
44.
Once the assessment is complete and a sponsor has been approved, the sponsor
enters into an agreement with the Federal government in which he or she agrees to:
a. Provide for the physical and mental well-being of the child, including but not
23
limited to, food, shelter, clothing, education, medical care and other services as
24
needed.
25
26
27
28
b. Attend a legal orientation program provided under the Department of
Justice/Executive Office for Immigration Review’s (EOIR) Legal Orientation
Program for Custodians (Sponsors), if available where he or she resides.
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1
c. Depending on where the unaccompanied alien child’s immigration case is
2
pending, notify the local Immigration Court or the Board of Immigration
3
Appeals within 5 days of any change of address or phone number of the child
4
5
6
7
8
9
10
11
12
13
14
(Form EOIR-33). (If applicable, file a Change of Venue motion on the child’s
behalf.10 A “change of venue” is a legal term for moving an immigration
hearing to a new location.)
d. Notify the DHS/U.S. Citizenship and Immigration Services within 10 days of
any change of address by filing an Alien’s Change of Address Card (AR-11) or
electronically at http://www.uscis.gov/ar-11.
e. Ensure the unaccompanied alien child’s presence at all future proceedings before
the DHS/Immigration and Customs Enforcement (ICE) and the DOJ/EOIR.
f. Ensure the unaccompanied alien child reports to ICE for removal from the
15
United States if an immigration judge issues a removal order or voluntary
16
departure order.
17
g. Notify local law enforcement or state or local Child Protective Services if the
18
child has been or is at risk of being subjected to abuse, abandonment, neglect or
19
maltreatment or if the sponsor learns that the child has been threatened, has been
20
21
22
23
24
sexually or physically abused or assaulted, or has disappeared. (Notice should be
given as soon as it is practicable or no later than 24 hours after the event or after
becoming aware of the risk or threat.)
h. Notify the National Center for Missing and Exploited Children at 1-800-843-
25
5678 if the unaccompanied alien child disappears, has been kidnapped, or runs
26
away. (Notice should be given as soon as it becomes practicable or no later than
27
28
24 hours after learning of the child’s disappearance.)
13
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i. Notify ICE at 1-866-347-2423 if the unaccompanied alien child is contacted in
1
2
any way by an individual(s) believed to represent an alien smuggling syndicate,
3
organized crime, or a human trafficking organization. (Notice should be provided
4
as soon as possible or no later than 24 hours after becoming aware of the
5
information.)
6
j. In case of an emergency, such as serious illness, destruction of home, etc.,
7
8
temporarily transfer physical custody of the child to another person who will
9
comply with the terms of the Sponsor Care Agreement.
10
k. In the event that a sponsor who is not the child’s parent or legal guardian is no
11
longer able and willing to care for the unaccompanied alien child and is unable to
12
temporarily transfer physical custody, notify ORR using the ORR National Call
13
14
15
Center, at 1-800-203-7001.
45.
If HHS cannot reasonably complete processes that are material to ensuring the welfare
16 of the children presently in ORR custody within the deadlines ordered by the Court, then HHS has
17 no choice but to make class membership determinations with incomplete information. The use of
18 incomplete information increases the risk of not only incorrect class membership determinations, but
19 also reunifications that endanger the welfare of the children presently in ORR care.
20
21
22
23
46.
My opinion is that some relaxing of the Court’s deadlines is needed to allow HHS, on
a case-by-case basis, to complete processes that HHS determines are necessary to make informed
class membership determinations and to protect the welfare of the children presently in ORR custody.
24
FACILITATION OF CLASS MEMBER COMMUNIATIONS
25
47.
HHS has facilitated communication between putative class members by helping
26 putative class members connect with case managers. HHS has directed field staff to help facilitate a
27
28
conversation between a putative class member and his or her child. For example, field staff may call
14
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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: (202) 532-4824
Fax: (202) 616-8962
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
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
9
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
15
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
25
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
9
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
26
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.
8
The Ms. L court reached the same conclusion in considering the situation of
9
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
15
immigration proceedings. Notably, like the Ninth Circuit, the court in Ms. L
16
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
25
discretionary authority to enforce immigration laws . . . including its decision to
26
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
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
18
release of minors to a parent (or others) when possible under Paragraph 14 or,
19
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
25
these provisions include exceptions to releasing or transferring minors to
26
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
8
14 without separating him or her from their parent, as such a separation would
9
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
16
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]
19
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
25
“continuous efforts . . . toward family reunification and . . . release”) (emphasis
26
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
8
or court-approved settlement.” Id. ¶ 12A.2. Here, the court decree in Ms. L
9
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
13
Second, both Ms. L and Flores expressly envision that adults who arrive at
14
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the United States with children are properly subject to detention – a critical aspect
16
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
8
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
16
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
8
would make little sense if that reunification would necessitate an immediate release
9
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
25
accommodation to . . . a parent who wishes to remain in the [family residential]
26
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-
3
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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
8
preference expressed by other plaintiffs who have challenged family separation.2
9
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.”).
2
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DATED:
June 29, 2018
Respectfully submitted,
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: (202) 532-4824
Fax: (202) 616-8962
19
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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
4
counsel of record by means of the District Clerk’s CM/ECF electronic filing
5
system.
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/s/ August E. Flentje
August E. Flentje
Attorney for Defendants
Exhibit 7
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 88 Filed 07/06/18 PageID.1815 Page 1 of 6
Case 3:18-cv-00428-DMS-MDD Document 88 Filed 07/06/18 PageID.1816 Page 2 of 6
Case 3:18-cv-00428-DMS-MDD Document 88 Filed 07/06/18 PageID.1817 Page 3 of 6
Case 3:18-cv-00428-DMS-MDD Document 88 Filed 07/06/18 PageID.1818 Page 4 of 6
Case 3:18-cv-00428-DMS-MDD Document 88 Filed 07/06/18 PageID.1819 Page 5 of 6
Case 3:18-cv-00428-DMS-MDD Document 88 Filed 07/06/18 PageID.1820 Page 6 of 6
Exhibit 8
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 91 Filed 07/06/18 PageID.1840 Page 1 of 2
1
2
3
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5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
Ms. L.; et al.,
Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,
12
13
v.
14
ORDER SETTING FURTHER
STATUS CONFERENCE
U.S Immigration and Customs
Enforcement (“ICE”); et al.,
15
Respondents-Defendants.
16
17
18
A status conference was held on July 6, 2018. Lee Gelernt appeared and argued for
19
Plaintiffs and Sarah Fabian appeared and argued for Defendants. After consulting with
20
counsel and being advised of the status of the case, IT IS HEREBY ORDERED:
21
1.
22
a list of the 101 children discussed at the conference that identifies each child and explains
23
the status of each child’s reunification with his or her parent.
24
2.
25
ORR policies and procedures in dispute.
26
3.
27
motion and proposed order for the Court’s review and signature. Otherwise, counsel
On or before July 7, 2018, at 5:00 p.m., the Government shall provide to Plaintiffs
Counsel shall meet and confer about the list, and shall also meet and confer on the
To the extent counsel reach an agreement on these issues, they should submit a joint
28
1
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Case 3:18-cv-00428-DMS-MDD Document 91 Filed 07/06/18 PageID.1841 Page 2 of 2
1
should be prepared to discuss these issues at a further status conference scheduled for July
2
9, 2018, at 10:00 a.m.
3
The Court has set up a dial in number for counsel and any members of
4
the news media that wish to attend. This number is for counsel and media
5
only, who should follow the steps below to connect to the conference call:
6
1.
Dial the toll free number: 877-873-8018;
7
2.
Enter the Access Code: 9911153 (Participants will be put on hold
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9
10
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until the Court activates the conference call);
3.
Enter the Participant Security Code 07090428 and Press # (The
security code will be confirmed);
4.
Once the Security Code is confirmed, participants will be prompted
to Press 1 to join the conference or Press 2 to re-enter the Security
Code.
Dated: July 6, 2018
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2
18cv0428 DMS (MDD)
Exhibit 9
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 95 Filed 07/09/18 PageID.1927 Page 1 of 2
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2
3
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8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
Ms. L.; et al.,
Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,
12
13
v.
14
ORDER FOLLOWING STATUS
CONFERENCE
U.S Immigration and Customs
Enforcement (“ICE”); et al.,
15
Respondents-Defendants.
16
17
18
A status conference was held on July 9, 2018. Lee Gelernt appeared and argued for
19
Plaintiffs and Sarah Fabian appeared and argued for Defendants. After consulting with
20
counsel and being advised of the status of the case, IT IS HEREBY ORDERED:
21
1.
22
documents to the Court:
On or before 6:00 p.m. on July 9, 2018, counsel shall submit the following
23
a.
A joint status report on the issue of the procedures to be followed for the
24
reunification of children and Class Members who have been released from ICE
25
custody. To the extent counsel have agreed on the procedures, they should submit a
26
joint motion and proposed order for the Court’s review. To the extent there is
27
disagreement, each side should set out its respective proposal and specify the
28
disagreements that require court resolution
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b.
A proposed notice to be provided to the Class.
On or before 10:00 a.m. on July 10, 2018, counsel shall submit a joint status report
2
2.
3
setting forth how many Class Members have been or will be reunited with their children
4
by the court-imposed deadline, and how many Class Members may not be reunited with
5
their children by the court-imposed deadline due to legitimate logistical impediments that
6
render timely compliance impossible or excusable, e.g., detention of the Class Member in
7
criminal custody or removal of the Class Member from the United States. For the latter
8
group, counsel should explain why reunification may not be completed, and provide a
9
timeframe for those reunifications.
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3.
A further status conference shall be held at 11:00 a.m. on July 10, 2018.
11
4.
The Court has set up a dial in number for counsel and any members of
12
the news media that wish to attend. This number is for counsel and media
13
only, who should follow the steps below to connect to the conference call.
14
Members of the general public may appear in person.
15
1.
Dial the toll free number: 877-873-8018;
16
2.
Enter the Access Code: 9911153 (Participants will be put on hold
17
18
19
20
21
22
23
24
until the Court activates the conference call);
3.
Enter the Participant Security Code 07100428 and Press # (The
security code will be confirmed);
4.
Once the Security Code is confirmed, participants will be prompted
to Press 1 to join the conference or Press 2 to re-enter the Security
Code.
Dated: July 9, 2018
25
26
27
28
2
18cv0428 DMS (MDD)
Exhibit 10
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1929 Page 1 of 24
1 CHAD A. READLER
Acting Assistant Attorney General
2 SCOTT G. STEWART
3 Deputy Assistant Attorney General
WILLIAM C. PEACHEY
4 Director
5 Office of Immigration Litigation
U.S. Department of Justice
6
WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
8
SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE MURLEY
10
Trial Attorney
11 Office of Immigration Litigation
U.S. Department of Justice
12
Box 868, Ben Franklin Station
13 Washington, DC 20442
Telephone: (202) 532-4824
14
Fax: (202) 616-8962
15
ADAM L. BRAVERMAN
16
United States Attorney
17 SAMUEL W. BETTWY
Assistant U.S. Attorney
18
California Bar No. 94918
19 Office of the U.S. Attorney
880 Front Street, Room 6293
20
San Diego, CA 92101-8893
21 619-546-7125
22 619-546-7751 (fax)
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
23 Attorneys for Federal Respondents24 Defendants
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice
25
26
27
28
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1930 Page 2 of 24
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
1
2
3
Case No. 18cv428 DMS MDD
MS. L, et al.,
Petitioners-Plaintiffs,
4
vs.
5
U.S. IMMIGRATION AND CUSTOMS
6 ENFORCEMENT, et al.,
7
Respondents-Defendants.
8
9
10
11
I.
JOINT STATUS REPORT
REGARDING SUITABILITY
PROCESS FOR RELEASE OF UAC
TO POTENTIAL PLAINTIFFS IN THE
GENERAL PUBLIC
JOINT STATUS REPORT
On July 9, 2018, this Court instructed the parties to confer on the processes
12 bearing on the reunification of class members with their children. The parties
13 submit this joint status report in compliance with the Court’s instruction. In areas
14
where the parties disagree, the federal government requests clear guidance from
15
16 the Court on those steps that must be taken prior to reunification so that it can
17 comply with the Court’s order on timing consistent with its statutory and
18
regulatory obligations under existing law. Each of these actions will affect the
19
20 speed with which the government can reunify families. The actions concern the
21 following:
22
• First, may HHS conduct DNA testing in every case to confirm each parent23
24
child relationship?
25
26
27
28
1
18cv428 DMS MDD
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1
• Second, must HHS use only information already obtained prior to the
2
reunification deadlines to determine if the parent will put the child at an
3
imminent risk of danger, abuse, or neglect?
4
5
• Third, may HHS run fingerprint background checks on unrelated adults in
6
the anticipated domicile of the child, before placing a child with a released
7
parent?
8
9
• Fourth, may HHS require released parents to submit proof of address and a
10
sponsor care plan?
11
12
• Fifth, may HHS require released parents to sign a Sponsor Care Agreement
13
14
15
and attend legal orientation trainings?
• Sixth, must HHS reunify children who are themselves determined to present
a danger?
16
17
18
19
20
II.
ISSUES ON WHICH THE PARTIES AGREE
1.
Vetting Parent-Child Relationships
The parties agree that the federal government may screen a putative class
21 members to confirm that he or she is, in fact, the parent of the child(ren) with
22
whom he or she seeks to reunify. The parties also agree that when HHS conducts
23
24 DNA testing to verify parentage, the federal government will not use the DNA
25 samples or test results for any purpose besides verifying parentage, and will ensure
26
that the DNA samples and test results are destroyed afterwards. The parties have
27
28
2
18cv428 DMS MDD
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1 not been able to agree on whether HHS can use DNA testing in every case
2 concurrent with other methods of verifying parentage to try to complete the
3
verification process within the court’s deadlines.
4
2.
5
6
7
8
Background Checks on Purported Parents
The parties agree HHS may conduct fingerprint background checks on
potential class members while parentage is being verified, to ensure that the person
9 is actually a class member without pertinent criminal history as set forth in the
10
11
12
Court’s class definition, and to ensure that the parent is neither unfit nor presents a
danger to the child presenting an obstacle to release. The parties further agree that
13 HHS will in all possible cases use information already obtained by ICE when it
14
15
16
collected the fingerprints of the potential class members and ran checks on them.
HHS cannot, however, exclude the possibility that in a small number of cases HHS
17 will need to collect potential class members’ fingerprints again to run the checks
18
19
necessary to ensure child safety and sponsor suitability. HHS believes that
20 fingerprinting may be appropriate in some situations to ensure child welfare where
21 there are objective indications of child endangerment.
22
23
24
3. Home Studies
The parties agree that HHS will conduct home studies for purposes of
25 reunification only when required by the TVPRA. The TVPRA states that home
26
27
studies:
28
3
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1
2
3
4
5
6
7
8
9
10
11
12
shall be conducted for a child who is a victim of a severe form of trafficking
in persons, a special needs child with a disability (as defined in section
12102 of title 42), a child who has been a victim of physical or sexual abuse
under circumstances that indicate that the child's health or welfare has been
significantly harmed or threatened, or a child whose proposed sponsor
clearly presents a risk of abuse, maltreatment, exploitation, or trafficking to
the child based on all available objective evidence.
8 U.S.C. § 1232(c)(3)(B).
III.
ISSUES ON WHICH THE PARTIES DISAGREE
A. Plaintiffs’ Position
The crux of Plaintiffs’ position is that the Government should not be allowed
to delay reunification to conduct procedures that would not have been used if the
13 child had not been forcibly taken from the parent. If a Class Member parent and
14
15
16
child had showed up at the border together, and had not been separated, then the
parent would not be required to undergo the extensive procedures proposed by the
17 Government to maintain custody of the child.
18
19
Plaintiffs thus believe that streamlined procedures are appropriate and lawful
20 in this unique context. The TVPRA, by its terms, does not mandate any particular
21 procedures for reunification, except for a small subset of cases where home studies
22
23
are required because there have been, inter alia, indications of abuse or trafficking.
24 8 U.S.C. 1232(c)(3)(B). There are also no regulations that ORR has promulgated
25 pursuant to the TVPRA that address reunification procedures. The Government,
26
27
however, as a matter of policy has created procedures for vetting sponsors (the
28
4
18cv428 DMS MDD
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1 “normal” reunification process). The Court need not, however, decide whether
2 these normal reunification procedures are required by the TVPRA. Even assuming
3
that these procedures are required by the TVPRA for certain children who come to
4
5 the United States without their parents, the TVPRA plainly does not preclude the
6
7
8
use of streamlined procedures in this unique context, where the Government has
forcibly taken children from their parents and is simply being asked to return
9 children to their parents.
10
11
12
Indeed, the purpose of the TVPRA is to promote the best interests of the
child and to reunite families. Delayed reunification, especially for babies and
13 toddlers, is not in the best interests of the child.
14
15
16
In short, there is nothing in the language or purpose of the TVPRA that
precludes this Court from ordering that in this unique context, and only for
17 purposes of this case, the Government use the streamlined procedures suggested by
18
19
Plaintiffs. The procedures that Plaintiffs are proposing—parental verification and
20 pursuing any red flags known to the Government at the time of the reunification
21 deadline—are entirely consistent with the TVPRA. 1
22
23
1. DNA Vetting of All Families.
24
Plaintiffs’ position that streamlined procedures are both appropriate and
lawful in this unique context, and not precluded by the TVPRA, is supported by
26 the Women’s Refugee Commission and Kids in Need of Defense (“KIND”), who
have years of experience working with unaccompanied children and the
27 reunification process. They will be submitting a declaration in conjunction with
this filing, and have both previously filed declarations in this case.
28
25
1
5
18cv428 DMS MDD
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1
Plaintiffs’ position with respect specifically to DNA testing is that the
2 Government should use DNA testing to verify parentage only where necessary,
3
meaning that there is no other reliable documentary, testimonial, or other evidence
4
5 of parentage. That way no further delays in reunification will occur as a result of
6
7
8
9
10
11
12
the need to DNA test every family. Had the families not been separated, they
would not routinely have been subjected to DNA testing. 2
In addition to any delays caused by DNA testing of every class member, the
Class Members and their children also have powerful interests in the privacy of
their DNA information. As the Ninth Circuit has said, “[o]ne can think of few
13 subject areas more personal and more likely to implicate privacy interests than that
14
15
16
17
18
19
of one’s health or genetic make-up.” Norman-Bloodsaw v. Lawrence Berkeley
Lab., 135 F.3d 1260, 1269 (9th Cir. 1998).
The circumstances of this case also render it inherently coercive for the
Government to require parents to submit to DNA testing to get back the children
20 that were unlawfully taken from them. Parents should not have to sacrifice their
21 privacy rights, and face the risk of having their DNA information collected in a
22
23
Government database, to be reunified with their children. Moreover, the
24
25
The Government states that three individuals were identified as nonparents during the HHS verification process, but does not state that DNA testing
27 was the basis for that determination, and in fact notes that the adults actually told
the Government they were not the parents.
28
26
2
6
18cv428 DMS MDD
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1 Government proposes routine DNA testing of young children, some of whom are
2 mere weeks or months old.
3
If, however, the Court concludes that the Government may use DNA testing
4
5 of parents and children to effectuate the injunction, at the absolute minimum the
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Court should order the Government to:
(1) exhaust first all other means of establishing or verifying parent-child
relationships, including through the use of techniques commonly used by
U.S. courts to determine family relationship—including official documents,
representations from a witness, parent, and/or child, and/or observation of
behaviors of the adult and child toward each other;
(2) only conduct a DNA test on those adults who have agreed to undergo a test;
(3) to ensure that all samples and data collected are not shared with any other
federal agency outside of HHS and that all such samples, data, and any
results are destroyed upon completion of the required matching tests and, in
any event within 7 days.
(4) To the extent that the Government employs outside contractors or medical
providers to conduct the DNA tests, such contractors must also be forbidden
24
from retaining any results and test samples and must destroy them within
25
seven days of producing a testing result. This will prevent the Government
26
27
from maintaining a database of samples and will ensure that any results are
28
7
18cv428 DMS MDD
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1
not used for any purposes other than facilitating reunification pursuant to the
2
Court’s injunction.
3
4
Finally, the Court should also make clear that the lack of a DNA match is not
5 conclusive proof of the lack of a parent-child relationship, in recognition that many
6
7
8
parents are not the biological parents of their children. For example, some parents
may not be aware that they have no biological relationship to their child in cases of
9 undisclosed rape or adultery.
10
11
12
13
14
2. Restrictions on HHS Information Gathering and Decision Making
about Child Welfare
Plaintiffs’ position is that if the Government becomes aware of evidence
prior to the reunification deadline that the parent is abusive, neglectful, or
15 otherwise poses a risk of danger to the child, Plaintiffs have no objection to the
16
17
18
Government taking additional time to verify the fitness of the parent before
releasing the child to his or her custody. For example, as set forth above, Plaintiffs
19 have no objection to the Government using information obtained from already20
21
performed fingerprint and background checks on Class Members to evaluate
22 parental fitness. In addition, if ORR workers have spoken with the child during the
23 child’s custody and learned information that calls the parent’s fitness into question,
24
25
that could be a basis to delay reunification. What Plaintiffs object to is permitting
26 the Government to drag out the reunification process by imposing procedures or
27 conducting additional investigation that is not required by statute.
28
8
18cv428 DMS MDD
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1
Plaintiffs acknowledge that any evaluation of parental fitness must rely to
2 some extent on “professional judgment.” But in the context of this case, and in
3
light of constitutional standards governing the separation of children from their
4
5 parents, that judgment must be based on actual, verifiable facts – not the untested
6
7
8
and subjective opinions of unknown Government case workers. Given that the
Government has already forcibly separated Class Members from their children, it
9 should be subjected to a rigorous burden to justify maintaining that separation.
10
11
12
The government should not be permitted to delay reunification any longer to
conduct a background check that would not have occurred had the parents not been
13 separated from their children. (Criminal background checks would of course
14
15
16
17
18
19
already have been done at the time of apprehension when the parent was initially
fingerprinted.)
3. Background Checks on Other Adults in the Household
Nothing in the TVPRA requires the Government to conduct background
20 checks of nonparent adults in the household, or alternate care givers, before
21 releasing a child from ORR custody. And the Government cites no applicable
22
23
statutory provision that so requires. Nor does the Flores Agreement contain any
24 language demanding that the agencies fingerprint and run checks on individuals
25 who live in the parent’s household.
26
27
28
9
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1939 Page 11 of 24
1
Requiring these background checks will impose needless delay on the
2 process by requiring household members to submit to checks. Moreover, DHS has
3
recently revised its regulations to allow information it collects from ORR during
4
5 the sponsor reunification process, including background checks of household
6
7
8
members, for the purposes of conducting immigration enforcement activities. As a
result, those household members may rightfully have concerns about sharing
9 information with DHS in light of its stated intent to use that information to come
10
11
12
after them.
In sum, nothing in the statute requires background checks of other adults or
13 alternate care givers, and it will only add further needless delay to this process. If
14
15
16
the Government had not separated Class Members from their children, they would
not have been required to undergo any of these procedures prior to obtaining
17 release. There is no reason to make them go through those processes here. 3
18
19
20
4. Proof of Address, Sponsor Care Plans and Alternate Care Givers
Plaintiffs do not object to Class Members submitting a proof of address of
21 where they will live with the child. But Plaintiffs object to any requirement that the
22
23
24
Plaintiff provide a “sponsor care plan” or identify alternate care givers prior to
Indeed, the government itself recognizes that this procedure is not required.
They are currently planning on reuniting parents and children tomorrow without
26 conducting background checks on all household members, even assuming the
Class Member knows at this point where she will be living and with whom.
27
25
3
28
10
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1940 Page 12 of 24
1 obtaining release of their children. Reunification should not be delayed because of
2 these unnecessary procedures.
3
The key here is in the first sentence of the Government’s position—“in the
4
5 ordinary operation of the UAC program.” Nothing about this particular context is
6
7
8
9
10
11
12
“ordinary,” and the Government is wrong to apply procedures that were developed
for an entirely separate context to this one.
The Government cites Section 1232(c)(3)(A), but that statute merely
requires ORR to make a “determination” that the proposed custodian is capable of
caring for the child. The statute does not compel that “determination” to be made
13 in a certain way, much less that this determination must take the same form in all
14
15
16
cases. Thus, there is nothing in the statute that precludes the Government from
adopting, in the unique circumstances of this case, streamlined procedures to return
17 separated children to their parents’ care.
18
19
The Government wants parents—whose children were unlawfully taken
20 from them—to fill out long paper applications and identify other caregivers for
21 them before it returns their children. The TVPRA was not intended to inhibit
22
23
family reunification—in fact, just the opposite. The Government cannot use it as a
24 sword to prohibit or delay reunification by throwing up such needless bureaucratic
25 roadblocks.
26
27
5. Legal Orientation and Sponsor Care Agreement
28
11
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1
Plaintiffs do not object to requesting Class Members to attend legal
2 orientation programs or sign “sponsor care agreements” that are consistent with the
3
requirements set forth in Plaintiffs’ positions above, so long as reunification by the
4
5 Court’s deadlines is not made contingent on fulfilling those conditions. For
6
7
8
example, there is no reason why Class Members cannot sign streamlined sponsor
care agreements as the child is released to their care pursuant to the Court’s
9 deadlines. In addition, Class Members can attend legal orientation programs after
10
11
12
reuniting with their children. But reunification of children should not be delayed
past the Court’s deadlines by requiring attendance at a legal orientation program or
13 the signing of a sponsor care agreement. 4
14
6. Children Presenting a Danger
15
Plaintiffs respectfully request additional time to respond to this point,
16
17 unless the Government represents that there are children under five years old who
18
19
fall into this category and present risks to the safety of themselves or others.
B. Defendants’ Positions
20
21
22
23
1.
Vetting Parent-Child Relationships
Despite the points of agreement noted above on this issue, the parties have
24 not been able to agree on the necessity of using DNA testing overall. In particular,
25
26
Plaintiffs note, however, that if the parents had never been separated from
their children, they would not have to sign sponsor care agreements or attend legal
27
orientation program to maintain custody of their children.
28
4
12
18cv428 DMS MDD
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1 HHS believes that, to reliably verify parentage and to do so within or close to the
2 Court’s deadlines, HHS must be able to use DNA testing generally to determine
3
parentage.
4
5
6
7
8
Sound verification of parentage is critical. HHS is charged with faithfully
implementing the Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA). To do so, HHS must be sure in all cases that a putative class member is
9 a child’s parent, including through DNA testing, before it forever releases the child
10
11
12
to the custody and care of that person. As HHS stated previously, ORR’s
experience is that children are smuggled across the border or trafficked by adults
13 who fraudulently or inaccurately hold themselves out as parents. See White Dec.
14
15
16
¶ 25. Consistent with that experience, HHS reports that it found that three putative
class members seeking release of children aged 0–4 were not the parents of the
17 children. Indeed, some of the putative class members admitted as much during
18
19
20
HHS’s verification-of-parentage process.
To verify parentage of a potential sponsor claiming to be a parent, HHS
21 commonly uses overlapping methods of comparing documents submitted by the
22
23
sponsor, consulting with the consulate of the home country, interviewing the
24 prospective sponsor and child, and obtaining results from DNA tests. To more
25 quickly implement the Court’s order, HHS has coordinated between its staff, its
26
27
grantees, and ICE, to obtain DNA test results on all the possible plaintiffs and
28
13
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1 children through cheek swabs. HHS is simultaneously checking documents and
2 conducting interviews, but many potential plaintiffs do not have adequate
3
documentation, and HHS does not control how fast other countries’ consulates will
4
5 provide documentation. The normal length of stay of a UAC in HHS custody
6
7
8
9
10
11
12
before release is 28 days, which is almost twice as long as the time the Court has
given HHS to complete reunifications with some class members.
In short, HHS does not believe that it can both expedite its processes and
ensure parentage if it foregoes the use of DNA testing to help verify parentage. Nor
would it be a good use of agency resources for HHS to spend more hours per case
13 reviewing documents only to find that DNA tests are ultimately required to resolve
14
15
16
17
18
19
20
21
questions arising from poor documentation. HHS thus respectfully submits that
Plaintiffs’ restriction of “necessity” does not promote the aims of the Court’s order.
2.
Restrictions on HHS Information Gathering and
Decision Making about Child Welfare
HHS believes that it is important for the Court to permit it to evaluate all
reasonably available and relevant information to allow HHS to make sound
22 judgments about child welfare.
23
24
25
It would therefore be a mistake, in HHS’s view, to adopt Plaintiffs’ proposed
limitation on the information that HHS can consider only evidence that it obtains
26 prior to the reunification deadline. This restriction could endanger children welfare
27 by preventing HHS from considering information material to assessing parental
28
14
18cv428 DMS MDD
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1 fitness. As discussed below, HHS may need additional information from
2 prospective sponsors to ensure child safety and sponsor suitability, and HHS
3
believes this to be the case even where the prospective sponsor is a parent. HHS
4
5 should not be prevented from obtaining this information simply because a
6
7
8
reunification deadline has passed.
HHS also does not believe that the Court should adopt the restriction that it
9 must release the UAC unless its finding of child endangerment is based on “actual,
10
11
12
verifiable facts.” The test is attractive in formulation, but unworkable given the
critical calls of professional judgment that HHS must make in promoting child
13 safety and wellbeing. The test that Congress chose for HHS is the interests of the
14
15
16
child. 6 U.S.C. § 279(b)(1)(B). HHS determines what is in the interests of the child
based on common forms of information used in child welfare contexts, including
17 interviews and assessments of children by ORR and clinicians, interviews by ORR
18
19
of relatives and friends, documents, background checks, and information presented
20 by the prospective sponsor. These determinations necessarily rest on sound
21 professional judgment, and do not lend themselves to easy review by wooden
22
23
resort to “actual, verifiable” information. HHS believes that the better approach is
24 for HHS to make informed decisions about an individual child’s interest, and for
25 Plaintiffs to petition this Court if they believe HHS has denied a release on grounds
26
27
that do not actually show danger to that child. This would accommodate the
28
15
18cv428 DMS MDD
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1 competing interests—and would provide a critical safety valve for the affected
2 children.
3
4
5
6
3. Background Checks on Other Adults in the
Household
In the interests of child welfare, HHS believes that the Court should allow
7 for sound background checks of non-sponsor adults with whom a UAC may be
8
9
10
released to live. HHS has implemented the TVPRA by requiring background
checks—including fingerprinting of other adults in the household and alternate
11 care givers where a sponsor parent will take a UAC to live. The importance of
12
13
14
background checks was borne out in the past week, during HHS’ screening of
potential class members for reunification of the separated children aged 0–4. HHS
15 reports that the checks showed three parents with criminal histories involving
16
17
18
human smuggling, child cruelty and narcotics convictions, and alleged murder,
respectively. When a parent plans to house a child with one or more other adults,
19 who might not even be relatives, those adults are no less likely to have significant
20
21
22
criminal histories.
Plaintiffs ask the Court to require HHS to release children directly into such
23 a situation without first running fingerprint background checks on those adults.
24
25
HHS submits that this would needlessly risk these children’s safety and wellbeing.
26 The Flores Settlement Agreement (see paragraphs 14–18) has long authorized the
27 government to conduct safety and suitability assessments before releasing UACs to
28
16
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1 parents in the general public who seek sponsorship. Legislating on this
2 background, the TVPRA requires HHS “to ensure that unaccompanied alien
3
children in the United States are protected from traffickers and other persons
4
5 seeking to victimize or otherwise engage such children in criminal, harmful, or
6
7
8
exploitative activity,” and to “make[] a determination that the proposed custodian
is capable of providing for the child's physical and mental well-being.” 8 U.S.C.
9 § 1232(c)(1) & (c)(3)(A). The TVPRA in turn requires HHS to “establish policies
10
11
12
… to ensure” these child safety measures are satisfied. Id. at 1232(c)(1). HHS has
established those policies in ORR’s UAC Policy Guide, “Children Entering the
13 United States Unaccompanied, Section 2: Safe and Timely Release from ORR
14
15
16
Care.”5 The guide requires “[p]roof of identify of adult household members and
adult care givers identified in a sponsor care plan.” Id. “In order to ensure the
17 safety of an unaccompanied alien child and consistent with the statutory
18
19
requirements under the TVPRA, ORR requires a background check of all potential
20 sponsors and household members. The background check takes place as soon as
21 the potential sponsor and adult household members have completed the
22
23
Authorization for Release of Information form, submitted fingerprints, and
24 provided a copy of a valid government issued photo identification.” Id. HHS has
25
26
5
Available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-
27 unaccompanied-section-2#2.1
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Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1947 Page 19 of 24
1 conducted background checks of adult household members since January 2016,
2 when the Senate Committee on Homeland Security and Government Affairs,
3
Permanent Subcommittee on Investigations, majority and minority staff report,
4
5 concluded that failing to require background checks on non-sponsor adult
6
7
8
household members or on backup sponsors led to child abuse and exploitation,
including when the sponsor was a parent.6
For these reasons, HHS respectfully submits that the Court should permit
9
10
11
12
HHS to continue to require background checks of other household adults where the
released parent will take the UAC to live.
13
4. Proof of Address, Sponsor Care Plans and Alternate
Care Givers
14
15
16
17
18
HHS believes that the Court should, in accordance with the ordinary
operation of the UAC program, permit HHS to require released sponsor parents to
submit proof of address and a sponsor care plan. Consistent with the statutory
19 requirement that “the proposed custodian [be] capable of providing for the child’s
20
21
physical and mental well-being,” 8 U.S.C. § 1232(c)(3), proof of address and a
22 sponsor care plan ensures the child will not be homeless or live in harmful
23
24
6
Available at
https://www.hsgac.senate.gov/imo/media/doc/Majority%20&%20Minority%20Staff%20Report
26 %20%20Protecting%20Unaccompanied%20Alien%20Children%20from%20Trafficking%20and%20
27 Other%20Abuses%202016-01-282.pdf
25
28
18
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1948 Page 20 of 24
1 conditions (it is easy to imagine many such conditions). And because class
2 members are likely to be without immigration status at this time, the sponsor care
3
plan is particularly appropriate so the parent would identify an alternate care giver
4
5 in the event that the parent, but not the child, is removed or deported. Fingerprints
6
7
8
and background checks are also required for those alternate care givers. HHS
understands that Plaintiffs’ proposal would preclude these child safety measures.
9 This would be a mistake.
10
11
12
5. Legal Orientation and Sponsor Care Agreement
The TVPRA declares that before release of a UAC to a sponsor in the
13 general public, “[t]he Secretary of Health and Human Services shall cooperate with
14
15
16
the Executive Office for Immigration Review to ensure that custodians receive
legal orientation presentations provided through the Legal Orientation Program
17 administered by the Executive Office for Immigration Review.” 8 U.S.C.
18
19
§ 1232(c)(4). The Homeland Security Act of 2002 requires that before HHS
20 releases a UAC, it “shall … ensure” that UACs “(i) are likely to appear for all
21 hearings or proceedings in which they are involved; (ii) are protected from
22
23
smugglers, traffickers, or others who might seek to victimize or otherwise engage
24 them in criminal, harmful, or exploitive activity; and (iii) are placed in a setting in
25 which they are not likely to pose a danger to themselves or others.” 6 U.S.C.
26
27
§ 279(b)(2). HHS’s policy guide thus requires sponsors—including verified
28
19
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1949 Page 21 of 24
1 parents—to sign a sponsor care agreement to ensure UAC attend their immigration
2 and other proceedings and follow certain guidance in case the UAC runs away or
3
an emergency occurs. These statutory requirements are important—including for
4
5 released class members—and so should be retained here.
6
7
8
6. Children Presenting a Danger
The parties disagree on whether HHS may decline to release a UAC to a
9 class member based on danger presented by the UAC to himself or herself. HHS
10
11
12
13
14
15
16
believes that it should retain its ability to protect children and the community in
these circumstances.
Since before the Flores Settlement Agreement, the government has held a
small percentage of UACs in secure custody because of the UAC’s own history
demonstrating they present a risk to the safety of themselves or others. In
17 reviewing the files of separated children over age five, HHS has identified children
18
19
with serious issues that would support a finding of dangerousness for that child.
20 Under cases implementing the Flores Settlement Agreement, any UAC in secure
21 custody with ORR is entitled to a bond hearing with an administrative law judge, if
22
23
the UAC contends that he or she is not a danger and should not be held in secure
24 custody.
25
26
27
HHS’s position is that if a UAC is in secure custody, and has not asked for a
bond hearing, or has had a bond hearing and lost the right to leave secure custody,
28
20
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1950 Page 22 of 24
1 then that child is properly detained. And the government does not have facilities
2 for detaining children who are security risks together with their parents. HHS
3
submits that it would be a particular mistake to order HHS to release such a UAC
4
5 into the general public when the UAC is already being provided with a bond
6
7
8
hearing on that issue under the implementation of the Flores Settlement
Agreement.
9
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12
13
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17
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18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1951 Page 23 of 24
1 DATED: July 9, 2018
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Respectfully submitted,
/s/ Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO
& IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice
27
28
22
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 96 Filed 07/09/18 PageID.1952 Page 24 of 24
1
2
3
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CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
/s/ Sarah B. Fabian
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
(202) 532-4824
(202) 616-8962 (facsimile)
sarah.b.fabian@usdoj.gov
ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
Attorneys for Respondents-Defendants
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23
18cv428 DMS MDD
Exhibit 11
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1953 Page 1 of 6
1 CHAD A. READLER
Acting Assistant Attorney General
2 SCOTT G. STEWART
3 Deputy Assistant Attorney General
WILLIAM C. PEACHEY
4 Director
5 Office of Immigration Litigation
U.S. Department of Justice
6
WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
8
SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE MURLEY
10
Trial Attorney
11 Office of Immigration Litigation
U.S. Department of Justice
12
Box 868, Ben Franklin Station
13 Washington, DC 20442
Telephone: (202) 532-4824
14
Fax: (202) 616-8962
15
ADAM L. BRAVERMAN
16
United States Attorney
17 SAMUEL W. BETTWY
Assistant U.S. Attorney
18
California Bar No. 94918
19 Office of the U.S. Attorney
880 Front Street, Room 6293
20
San Diego, CA 92101-8893
21 619-546-7125
22 619-546-7751 (fax)
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
23 Attorneys for Federal Respondents24 Defendants
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice
25
26
27
28
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1954 Page 2 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
1
2
3
Case No. 18cv428 DMS MDD
MS. L, et al.,
Petitioners-Plaintiffs,
4
JOINT STATUS REPORT
REGARDING NOTICE TO CLASS
MEMBERS
vs.
5
U.S. IMMIGRATION AND CUSTOMS
6 ENFORCEMENT, et al.,
7
Respondents-Defendants.
8
9
On July 9, 2018, the Court held a status conference with the parties. At that
10
11 status conference the parties submitted that they would jointly submit to the Court
12 their proposal regarding class notice. The parties hereby state that they have
13
agreed that the first page of the attached Exhibit (Notice)1 will be posted in ICE
14
15 detention facilities in which Class Members are detained as of July 10, 2018. To
16 facilitate such posting, Plaintiffs will provide to Defendants a copy of the Notice
17
that contains the information contained therein in both English and Spanish.
18
The parties further agree that the second page, or Exhibit (Election Page)
19
20 will be provided only to Class Members subject to a final order of removal in order
21
to ensure that the Class Member has the opportunity to make an affirmative,
22
23 knowing, and voluntary decision whether to be removed with or without the Class
24
25
26
27
1
The attached Notice is final except that the Parties seek a decision by the Court
regarding the inclusion of one additional provision discussed below.
28
1
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1955 Page 3 of 6
1 Member’s child or children. At the time the Election Page is provided, Plaintiffs
2 will also hand to the Class Member a copy of the Notice.
3
The parties have two points of clarification for resolution by this Court.
4
5 First, the parties agree that for Class Members with a final order of removal who
6
7
8
are asked to consider their rights under this Notice, Defendants will allow a
specified time period between the provision of the Notice and the removal of any
9 class members to allow time for that Class Member to consult with a lawyer or
10
11
12
otherwise consider his or her exercise of these rights. Defendants propose that this
time period be 24-hours, which is consistent with other situations in which a court
13 order requires a delay in removal in order to permit an alien to consider his or her
14
15
16
options. See, e.g., Orantes-Hernandez v. Gonzales, 504 F. Supp. 2d 825 (C.D. Cal.
2007) (requiring 24 hours’ notice prior to removal). This time period is therefore
17 consistent with Defendants’ current operations related to any notification of rights
18
19
20
prior to removal.
Plaintiffs propose a 48-hour time period. Plaintiffs’ believe this time period
21 is necessary because of the confusion surrounding this case for months and the fact
22
23
that there are more than 2,000 Class Members. Given the number of Class
24 Members, it will be nearly impossible to get attorneys to them within 24 hours.
25
26
27
Second, Plaintiffs also seek inclusion in the Notice language advising nonClass Members that they may nonetheless have a right to reunification and should
28
2
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1956 Page 4 of 6
1 contact an attorney. Plaintiffs believe this language is necessary because parents
2 may wrongly assume that if they are not Class Members, they have lost their
3
children forever. As the Court has made clear, individuals with criminal
4
5 convictions are not part of the Class, but may still be entitled to reunification with
6
7
8
their children under the Due Process Clause if their conviction does not bear on
their fitness to provide care for their children. Under the Government’s version of
9 the Notice, however, Class Members will likely be confused that their right to
10
11
12
reunification hinges solely on whether they are Class Members. Plaintiffs do not
believe that Defendants are in any way prejudiced by the inclusion of this short
13 addition to the Notice. Given what is at stake for these families, Plaintiffs believe
14
15
16
that it is appropriate to include this language.
Defendants object to the inclusion of such language, as the Notice is
17 intended to explain the rights of Class Members pursuant to the preliminary
18
19
injunction issued by this court. Defendants are concerned that the inclusion of an
20 advisal for individuals outside the class would be inappropriate and may lead to
21 confusion. In fact, the inclusion of such an advisal in the Notice may lead the non22
23
Class Members to believed that they are represented by Class Counsel, and that the
24 same is legal advice.
25
26
27
The parties ask this Court to resolve these two issues either through written
order or on the record at the status conference set for July 10, 2018.
28
3
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1957 Page 5 of 6
1 DATED: July 9, 2018
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Respectfully submitted,
/s/ Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO
& IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice
CHAD A. READLER
4
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 97 Filed 07/09/18 PageID.1958 Page 6 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
/s/ Sarah B. Fabian
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
(202) 532-4824
(202) 616-8962 (facsimile)
sarah.b.fabian@usdoj.gov
ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
Attorneys for Respondents-Defendants
20
21
22
23
24
25
26
27
28
5
18cv428 DMS MDD
Case 3:18-cv-00428-DMS-MDD Document 97-1 Filed 07/09/18 PageID.1959 Page 1 of 2
Notice of Potential Rights for
Certain Detained Alien Parents Separated from their Minor Children
On June 26, 2018, a federal court issued a nationwide preliminary injunction in the case of Ms. L
v. I.C.E., ---F. Supp. 3d---, 2018 WL 3129486 (S.D. Cal. June 26, 2018).
You may be a class member who has rights under this lawsuit if:
•
•
You are or were detained in custody by the U.S. Department of Homeland Security
(DHS); and
Your minor child was separated from you by DHS and is detained in the custody of the
U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR),
ORR foster care, or DHS custody.
If you are determined to be a class member:
•
•
•
•
The government must reunify you with your child.
You do NOT need to take any action to be reunified with your child.
The government must reunify you by the following dates unless otherwise ordered by the
Court:
a.
If your child is younger than 5 years old, he or she must be reunified with you by
July 10, 2018.
b.
If your child is 5 or older, he or she must be reunified with you by July 26, 2018.
You do NOT need to agree to removal from the United States in order to be reunified
with your child. You may continue to fight your case. You should NOT be pressured to
agree to removal in order to be reunified with your child.
You are not a class member and do not have rights under this lawsuit if:
•
•
•
•
You were apprehended by DHS in the interior of the United States;
You have a criminal history other than illegal entry;
You have a communicable disease;
A determination is or has been made that you are unfit or present a danger to your minor
child.
If you have any questions about your potential rights, please contact the lawyers for the case at
646-905-8892 or write to the lawyers at this address:
Ms. L. Class Counsel
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
Case 3:18-cv-00428-DMS-MDD Document 97-1 Filed 07/09/18 PageID.1960 Page 2 of 2
IMPORTANT
Instructions: This information on this page must be read to the alien parent in a language that he/she
understands. The Notice must be given to the alien parent at the same time as this form. The alien parent
should indicate which option he/she is choosing by signing the appropriate box below.
You DO NOT have to agree to removal from the United States in order to be reunified with your
child. Even if you continue to fight your case, the government must still reunify you.
IF YOU LOSE YOUR CASE AND THE GOVERNMENT IS GOING TO REMOVE YOU
FROM THE UNITED STATES, you must decide at that time whether you want your child to
leave the United States with you.
Parent Name / Nombre de Padre:________________________________________________________
Parent A # / A # de Padre: ______________________________________________________________
Country of Citizenship / Pais de Ciudadania: ______________________________________________
Detention Facility / El Centro de Detención: _______________________________________________
Child(ren) Name(s) / Nombre de Hijo: ___________________________________________________
Child(ren) A # / A # de Hijo: ____________________________________________________________
CHOOSE ONE OPTION:
_____ If I lose my case and am going to be removed, I would like to take my child with me.
_____ If I lose my case and am going to be removed, I do NOT want to take my child with me.
Certificate of Service
I hereby certify that this form was served by me at________________________
(Location)
on ___________________________ on _____________________________, and the contents of this
(Name of Alien)
(Date of Service)
notice were read to him or her in the __________________________ language.
(Language)
___________________________________ __________________________________________
Name and Signature of Officer
Name or Number of Interpreter (if applicable)
Formatted: Spanish (Ecuador)
Formatted: Spanish (Ecuador)
Formatted: Spanish (Ecuador)
Case 3:18-cv-00428-DMS-MDD Document 97-2 Filed 07/09/18 PageID.1961 Page 1 of 2
Notice of Potential Rights for
Certain Detained Alien Parents Separated from their Minor Children
On June 26, 2018, a federal court issued a nationwide preliminary injunction in the case of Ms. L
v. I.C.E., ---F. Supp. 3d---, 2018 WL 3129486 (S.D. Cal. June 26, 2018).
You may be a class member who has rights under this lawsuit if:
•
•
You are or were detained in custody by the U.S. Department of Homeland Security
(DHS); and
Your minor child was separated from you by DHS and is detained in the custody of the
U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR),
ORR foster care, or DHS custody.
If you are determined to be a class member:
•
•
•
•
The government must reunify you with your child.
You do NOT need to take any action to be reunified with your child.
The government must reunify you by the following dates unless otherwise ordered by the
Court:
a.
If your child is younger than 5 years old, he or she must be reunified with you by
July 10, 2018.
b.
If your child is 5 or older, he or she must be reunified with you by July 26, 2018.
You do NOT need to agree to removal from the United States in order to be reunified
with your child. You may continue to fight your case. You should NOT be pressured to
agree to removal in order to be reunified with your child.
You are not a class member and do not have rights under this lawsuit if:
•
•
•
•
Comment [A1]: Plaintiffs would remove this language.
You were apprehended by DHS in the interior of the United States;
You have a criminal history other than illegal entry;
You have a communicable disease;
A determination is or has been made that you are unfit or present a danger to your minor
child.
IMPORTANT: Even if you are not a class member, if you were separated from your
children, you may still have a right to be reunified with your child, and should contact the
lawyers in this case by phone or by writing a letter.
If you have any questions about your potential rights, please contact the lawyers for the case at
646-905-8892 or write to the lawyers at this address:
Ms. L. Class Counsel
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
Comment [A2]: Plaintiffs would add this language.
Case 3:18-cv-00428-DMS-MDD Document 97-2 Filed 07/09/18 PageID.1962 Page 2 of 2
IMPORTANT
Instructions: This information on this page must be read to the alien parent in a language that he/she
understands. The Notice must be given to the alien parent at the same time as this form. The alien parent
should indicate which option he/she is choosing by signing the appropriate box below.
You DO NOT have to agree to removal from the United States in order to be reunified with your
child. Even if you continue to fight your case, the government must still reunify you.
IF YOU LOSE YOUR CASE AND THE GOVERNMENT IS GOING TO REMOVE YOU
FROM THE UNITED STATES, you must decide at that time whether you want your child to
leave the United States with you.
Parent Name / Nombre de Padre:________________________________________________________
Parent A # / A # de Padre: ______________________________________________________________
Country of Citizenship / Pais de Ciudadania: ______________________________________________
Detention Facility / El Centro de Detención: _______________________________________________
Child(ren) Name(s) / Nombre de Hijo: ___________________________________________________
Child(ren) A # / A # de Hijo: ____________________________________________________________
CHOOSE ONE OPTION:
_____ If I lose my case and am going to be removed, I would like to take my child with me.
_____ If I lose my case and am going to be removed, I do NOT want to take my child with me.
_____ I do not have a lawyer, and I want to talk with a lawyer before deciding whether I
want my child removed with me.
Certificate of Service
I hereby certify that this form was served by me at________________________
(Location)
on ___________________________ on _____________________________, and the contents of this
(Name of Alien)
(Date of Service)
notice were read to him or her in the __________________________ language.
(Language)
___________________________________ __________________________________________
Name and Signature of Officer
Name or Number of Interpreter (if applicable)
Comment [A3]: Plaintiffs believe there should be 48 hours
to consult with a lawyer; Defendants believe it should be 24
hours.
Exhibit 12
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 98 Filed 07/09/18 PageID.1963 Page 1 of 3
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Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice
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11
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Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
13
14 Ms. L., et al.,
15
v.
Petitioners-Plaintiffs,
Case No. 18-cv-00428-DMS-MDD
U.S. Immigration and Customs Enforcement
17 (“ICE”), et al.,
DECLARATION OF MICHELLE
BRANÉ AND JENNIFER
PODKUL
18
CLASS ACTION
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Respondents-Defendants.
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1.
We, Michelle Brané and Jennifer Podkul, make the following declaration based
on our personal knowledge and declare under the penalty of perjury pursuant to 28
U.S.C. § 1746 that the following is true and correct:
2.
Michelle Brané is an attorney and the Director of the Migrant Rights and Justice
Program at the Women’s Refugee Commission (“WRC”). She has previously
submitted three declarations in this case.
3.
Jennifer Podkul is an attorney and the Director of Policy at Kids In Need of
Defense (“KIND”). She has previously submitted two declarations in this case.
4.
We have read the Plaintiffs’ submission in the joint statement of issues
regarding reunification procedures for children who have been separated from their
parents.
5.
We believe that the Plaintiffs’ procedures for reunification adequately protect
child welfare in the unique context of this case, where children were forcibly taken
from fit parents and must now be returned. We also believe that the Plaintiffs’
procedures are consistent with the Trafficking Victims Protection Reauthorization Act
(“TVPRA”).
6.
We declare under penalty of perjury that the foregoing is true and correct, based
on our personal knowledge.
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Exhibit 13
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 99 Filed 07/10/18 PageID.1966 Page 1 of 10
1 CHAD A. READLER
Acting Assistant Attorney General
2 SCOTT G. STEWART
3 Deputy Assistant Attorney General
WILLIAM C. PEACHEY
4 Director
5 Office of Immigration Litigation
U.S. Department of Justice
6
WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
8
SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE MURLEY
10
Trial Attorney
11 Office of Immigration Litigation
U.S. Department of Justice
12
Box 868, Ben Franklin Station
13 Washington, DC 20442
Telephone: (202) 532-4824
14
Fax: (202) 616-8962
15
ADAM L. BRAVERMAN
16
United States Attorney
17 SAMUEL W. BETTWY
Assistant U.S. Attorney
18
California Bar No. 94918
19 Office of the U.S. Attorney
880 Front Street, Room 6293
20
San Diego, CA 92101-8893
21 619-546-7125
22 619-546-7751 (fax)
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
23 Attorneys for Federal Respondents24 Defendants
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice
25
26
27
28
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Case 3:18-cv-00428-DMS-MDD Document 99 Filed 07/10/18 PageID.1967 Page 2 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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Case No. 18cv428 DMS MDD
MS. L, et al.,
Petitioners-Plaintiffs,
JOINT STATUS REPORT
REGARDING REUNIFICATION
vs.
U.S. IMMIGRATION AND CUSTOMS
6 ENFORCEMENT, et al.,
7
Respondents-Defendants.
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9
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On July 9, 2018, this Court held a status conference, and ordered the parties
12 to file a joint report on July 10, 2018, “setting forth how many Class Members
13 have been or will be reunited with their children by the court-imposed deadline,
14
and how many Class Members may not be reunited with their children by the
15
16 court-imposed deadline due to legitimate logistical impediments that render timely
17 compliance impossible or excusable . . . .” ECF No. 95 at 2. The parties submit this
18
joint status report in accordance with the Court’s instruction.
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I.
COMPLIANCE
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A. Defendants’ Position
As previously reported to the Court, Defendants have identified 102 children
24 under age 5 who, upon initial review by the U.S. Department of Health and Human
25 Services (“HHS”) were determined potentially to have been separated from a
26
parent, and who therefore were potentially the children of class members. Upon
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1 further review, and based on the latest available information at the time of filing,
2 Defendants report the following regarding the reunification scenarios for those 102
3
children.
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Not Eligible For Reunification
• 14 are not eligible for reunification because their parents are not class
members.
o 8 parents had serious criminal history discovered during
background checks (criminal histories identified include child
cruelty and narcotics, human smuggling, a warrant for murder,
and robbery).
o 5 adults were determined not to be the parent of the
accompanying child.
o 1 parent faces credible evidence of child abuse.
• 2 are not eligible for reunification because their parents are not class
members at this time.
o 1 parent has been determined to present a danger to the child at
this time because an adult in the household where the parent
plans to live with the child has an outstanding warrant for
aggravated criminal sexual abuse against a 10 year old girl.
This determination can be reconsidered if the parent identifies a
different living situation.
o 1 parent detained in ICE custody is currently being treated for a
communicable disease. When the parent no longer has a
communicable disease, the reunification process can proceed.
• 10 are not eligible for reunification at this time. They will be assessed
for reunification after they are released from criminal custody,
provided that Defendants are made aware of that release.
o 8 parents are in the custody of U.S. Marshals Service. They will
be assessed for reunification after they are released from
criminal custody and are transferred to U.S. Immigration and
Customs Enforcement (“ICE”) custody.
o 2 additional parents are in state or county custody. They will be
assessed for reunification after they are released from criminal
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custody, provided that Defendants are made aware of that
release.
• 1 child cannot be reunified at this time because the parent’s location
has been unknown for more than a year. Defendants are unable to
conclusively determine whether the parent is a class member, and
records show the parent and child might be U.S. citizens.
Likely Eligible For Reunification
• 4 children were reunified with family members before the July 10
deadline.
o 1 was released to a parent that ICE released into the U.S.
o 1 was released to a parent in the U.S. with the other parent
being deported.
o 1 was released to a parent in the U.S. with the other parent
being still in ICE custody
o 1 voluntarily departed with the child’s adult sibling, with the
consent of the parent who is still in ICE custody.
• 51 are eligible for reunification with a parent who is currently in ICE
detention.
o 34 parents have cleared a criminal background check and
parentage has been verified through a positive DNA match.
They are expected to be reunified on July 10, 2018.
o 16 parents have cleared a criminal background check but the
process for verifying parentage has not yet been completed.
They are expected to be reunified on July 10, 2018, or as soon
thereafter as parentage can be verified.
o 1 parent has criminal background check results that are still in
question and are being resolved today.
• 20 are eligible for reunification but cannot be reunified by July 10 due
to legitimate logistical impediments that render timely compliance
impossible or excusable.
o 12 of those parents were removed from the United States. The
Government will work with Plaintiffs’ counsel to contact these
12 parents and determine whether they wish to have their child
reunified with them in their home country. The parties’
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proposals regarding the process to be followed for these
individuals are laid out below.
o 8 parents were previously released into the United States and
are undergoing safety and suitability screening in accordance
with the TVPRA.
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8
Defendants contend that the above numbers show that Defendants are in
compliance with the Court’s order. Of the 75 children eligible for reunification,
Defendants have already reunified 4, and expect to reunify 34 by the July 10
9 deadline, and 16 soon thereafter pending confirmation of eligibility. Of the
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11
12
remaining 20, 8 will be reunified as soon as HHS can determine that the parent is
not unfit or a danger to the child in accordance with its existing procedures under
13 the TVPRA, and the remaining 12 may be reunified if their parents can be located
14
15
16
and if those parents request reunification, and reunification is otherwise proper
under the Court’s order. Moreover, of the 27 children not currently eligible for
17 reunification, 14 have parents who are not class members, and the remaining 13
18
19
may be reunified if and when their parents no longer present a danger, have a
20 communicable disease, or are in criminal custody so long as ICE is aware of their
21 release, and it is otherwise determined that they meet the criteria for reunification.
22
23
Thus, any children not being reunified by the July 10 deadline are not being
24 reunified because of legitimate logistical impediments that render timely
25 compliance impossible or excusable, and so Defendants are complying with the
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Court’s order.
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B. Plaintiffs’ Position
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Plaintiffs do not agree that Defendants have fully complied with the initial
reunification deadlines in the Court’s preliminary injunction order. Plaintiffs
5 received Defendants’ updated numbers within the past hour, and have no
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7
8
independent verification that these numbers are accurate, or that there are not
additional children under five who should be on the government’s list. Plaintiffs,
9 however, can state the following: By today’s deadline, Defendants only plan to
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reunify about half of the parents with children under five years old. Plaintiffs
recognize that Defendants cannot yet reunify the parents who are currently being
13 held in criminal custody. But as to all other Class Members with children under
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five, the government is not in compliance with the clear deadline ordered by the
Court.
1.
For the Class Members who were deported without their children,
Defendants have not even tried to contact them or facilitate their reunification by
20 today. Their children are stranded in this country because of Defendants’ actions,
21 and yet Defendants have apparently done nothing to facilitate their reunification.
22
23
2.
For the Class Members who have been released from custody,
24 Defendants have not explained why they could not facilitate their reunification by
25 the deadline. Defendants have all of these parents’ contact information, and there
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are apparently only 8 of them. To the extent Defendants have chosen to subject
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Case 3:18-cv-00428-DMS-MDD Document 99 Filed 07/10/18 PageID.1972 Page 7 of 10
1 these parents to ORR’s lengthy sponsorship process, Plaintiffs do not believe those
2 procedures are required. Moreover, even if Defendants believed those procedures
3
would prevent them from reunifying 8 parents in two weeks, they should have
4
5 informed the Court far earlier than last Friday’s status conference, a mere four days
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7
before the deadline.
3.
8
There are Class Members that Defendants do not currently plan to
9 release today, because Defendants have not yet completed their DNA tests.
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Defendants have not explained why they could not complete these tests or verify
parentage through other means by today’s deadline.
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4.
There is one child for whom Defendants have not even identified a
parent. They have not explained what steps they have taken to find this Class
Member.
II.
DEADLINES
• Removed Parents: Defendants have provided to Plaintiffs the date of
removal and country of removal for all known removed parents with
children under 5. Defendants will provide to Plaintiffs the location of
the ICE detention facility where each removed parent was last held.
Plaintiffs’ counsel will seek to locate those removed parents and
provide them with notice of their right to be reunified. If any parent
expresses that he or she wishes to be reunified with his or her child
then Defendants will facilitate that reunification.
o Plaintiffs’ Position: Plaintiffs believe that once Defendants are
notified that a removed parent wishes to be reunified with his or
her child, reunification should occur within 7 days.
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o Defendants’ Position: Defendants ask the Court to allow a more
flexible time period because there are several issues that may
impact the timing of removal for these children. For example,
Defendants would need to obtain travel documents for the
child, and any ongoing removal proceedings for that child
would have to be terminated which might require separate
waiver from the parents and/or approval from an immigration
judge. Moreover, if the child has already obtained relief and is
in lawful status, then Defendants would not have the ability to
facilitate reunification with a parent abroad. Because pieces of
this process are out of Defendants hands, Defendants request
that the Court allow for a flexible schedule for such removals
that considers the need to complete these steps prior to removal
for reunification.
• Reunification To Released Parents: This issue will be determined, at
least in part, by the Court’s ruling on the parties’ joint submission on
the procedures to be followed by HHS under the Court’s order.
Accordingly, the parties will meet and confer following that ruling
and will submit a proposal, or respective positions, on this issue for
the Court’s consideration.
15
16
17 DATED: July 10, 2018
Respectfully submitted,
18
/s/ Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
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Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO
& IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice
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CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
/s/ Sarah B. Fabian
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
Civil Division
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U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
(202) 532-4824
(202) 616-8962 (facsimile)
sarah.b.fabian@usdoj.gov
ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
Attorneys for Respondents-Defendants
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18cv428 DMS MDD
Exhibit 14
APPENDIX A, DEFENDANTS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS; MOTION FOR EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
State of Washington, et al. v. United States, et al.,
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 616-0473
FACSIMILE: (202) 305-7000
Case 3:18-cv-00428-DMS-MDD Document 101 Filed 07/10/18 PageID.1976 Page 1 of 5
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UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
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Ms. L.; et al.,
Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,
12
13
v.
14
ORDER FOLLOWING STATUS
CONFERENCE
U.S Immigration and Customs
Enforcement (“ICE”); et al.,
15
Respondents-Defendants.
16
17
18
A status conference was held on July 9, 2018, after which the parties submitted two
19
Joint Status Reports. In the first of those Reports, the parties identified some disagreements
20
about the processes to be followed prior to reunification of Class Members and their
21
children, with a particular eye toward the reunifications of children under age 5 by the
22
court-ordered deadline of July 10, 2018. The second Report provided more detailed
23
information about these parents, i.e., those with children under the age of 5, and set out
24
which of those parents were ineligible for reunification, which parents were ineligible for
25
reunification by the July 10, 2018 deadline, how many parents had already been reunified
26
with their children, which parents were eligible for reunification by the July 10, 2018
27
deadline, and which parents were eligible for reunification, but not by the July 10, 2018
28
deadline.
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1
A follow-up status conference was held on July 10, 2018, to discuss these issues
2
with counsel. During that conference, the Court explained ICE’s past procedure for dealing
3
with parents and children who entered ICE custody together. That procedure was geared
4
toward resolving “any doubt about whether they are parent and child, and second, whether
5
there is information that causes a concern about the welfare [of] the child, such as the adult
6
having a significant criminal history.” (Decl. of Mario Ortiz in Supp. of Opp’n to Am.
7
Mot. for Prelim. Inj. ¶¶ 3, ECF No. 46-1.)) If there were no “concerns about the family
8
relationship or welfare of the child, the [parent and child would] be detained at a family
9
residential center or, if appropriate, released to a sponsor or non-governmental
10
organization.” (Id.) If there were concerns, the child would “be transferred to the U.S.
11
Department of Health and Human Services Office of Refugee Resettlement (ORR) for care
12
and placement consideration.” (Id.) The Court explained this procedure had been in effect
13
for many years, and had been effective in ensuring the safety and well-being of children
14
processed through ICE custody.
15
The Court contrasted this procedure with the procedure for vetting sponsors for
16
“unaccompanied minors” under the TVPRA. As explained during the hearing, and in
17
previous orders in this case, the TVPRA was promulgated to address a different situation,
18
namely, what to do with alien children who were apprehended without their parents at the
19
border or otherwise. In that situation, the lengthy and intricate vetting process makes sense
20
because arguably the Government is not dealing with a parent, but is instead dealing with
21
perhaps another relative or even a foster-type parent. That detailed vetting process was not
22
meant to apply to the situation presented in this case, which involves parents and children
23
who were apprehended together and then separated by government officials. Rather, it
24
appears ICE had a more streamlined procedure for that situation, as set out above.
25
Both of these procedures, at their core, aim to promote the best interests of the
26
children who are taken into government custody. This Court also seeks to serve that
27
interest, and has attempted to do so by focusing on the two issues set out in ICE’s past
28
procedure: Ensuring the adult is the parent of the accompanied child, and ensuring the
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1
parent does not present a danger to the child’s welfare. Both of these concepts are built
2
into the definition of the class certified by the Court, as well as the preliminary injunction.
3
And in the context of this case, both of these concerns can be addressed by a process similar
4
to the one previously used by ICE in dealing with parents and children apprehended
5
together. Accordingly, in this case, the Government need not comply with the onerous
6
policies for vetting child sponsors under the TVPRA prior to reunifying Class Members
7
with their children.1 Rather, the Government need only comply with the more streamlined
8
procedure set out during the hearing.
9
As explained therein, that procedure allows for DNA testing of adult and child, but
10
only when necessary to verify a legitimate, good-faith concern about parentage or to meet
11
a reunification deadline.
12
circumstances, it should be completed in accordance with Plaintiffs’ proposal in the Joint
13
Status Report at pages 7-8. (See ECF No. 96.)
To the extent DNA testing is warranted under those
14
On the dispute surrounding follow-up background checks of parents, the Court
15
agrees with Plaintiffs that those background checks should not delay reunification.
16
Certainly, if the Government has performed a background check on a parent prior to
17
reunification, and that background check indicates the parent may pose a danger to the
18
child, reunification need not occur unless and until those concerns are resolved. However,
19
the Government must have a good faith belief that further background investigation is
20
warranted before delaying reunification on that basis.
21
investigations of the type contemplated by the TVPRA are not required here, and the
22
Government’s inability to complete that type of background investigation prior to a
23
reunification deadline will not be a valid reason for delaying reunification past a court-
24
imposed deadline.
In general, background
Presumably, the Government has performed or will perform a
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The Court notes the vetting process and procedure set out by the Government here is a
matter of ORR policy. The process and procedure are not mandated by statute or
regulation.
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background check on all parents who could fall within the Class, and those background
2
checks will be completed well in advance of the reunification deadlines, which will obviate
3
the need for any delays on this ground.
4
The next dispute concerns background checks on other adults in the household where
5
the Class Member and his or her child will reside. As with the preceding issue, these
6
background checks are part of the TVPRA procedures, and they are not necessary here
7
where the child is being reunited with a parent. As Plaintiffs’ counsel pointed out during
8
the hearing, the touchstone here is the interest of the parent in making decisions for their
9
child, and presumably the parent has the child’s best interest in mind.
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The next dispute concerns “sponsor care plans,” which is another procedure
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contemplated by the TVPRA.2 As with the procedures discussed above, the Court declines
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to require Class Members to submit these plans prior to or as a condition of reunification
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with their children.
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Next, the parties dispute whether Class Members must sign “sponsor care
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agreements” and attend legal orientation programs, again both of which are policies
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contemplated by the TVPRA. Here, as above, Plaintiffs do not object to executing these
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agreements or attending these orientation programs, provided those procedures do not
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delay reunification of Class Members and their children. The Court agrees with Plaintiffs,
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and thus declines to impose these requirements as a condition to reunification.
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The final dispute concerns children who may pose a danger to themselves or others.
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This concern is not applicable to the children under age 5 who are scheduled for
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reunification today. To the extent this concern is relevant to the older children, the parties
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may raise that issue in a further status report.
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///
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///
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The parties indicated there was also a dispute about whether Class Members must provide
a proof of address. However, Plaintiffs do not object to that requirement.
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18cv0428 DMS (MDD)
Case 3:18-cv-00428-DMS-MDD Document 101 Filed 07/10/18 PageID.1980 Page 5 of 5
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With these rulings, the Court anticipates the Government will be reuniting fifty-nine
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(59) Class Members with their children by the end of the day today. This will be in addition
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to the four (4) parents and children that have already been reunified.
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Counsel shall submit a further joint status report to the Court on or before 3:00 p.m.
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on July 12, 2018. That report should provide an update on Defendants’ compliance with
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the reunification deadline for children under age 5, and a status on the efforts to reunify the
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remaining members of the Class with their children over age 5. A further status conference
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shall be held at 1:00 p.m. on July 13, 2018. The Court has set up a dial in number for
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counsel and any members of the news media that wish to attend. This number is for
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counsel and media only, who should follow the steps below to connect to the conference
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call. Members of the general public may appear in person.
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1.
Dial the toll free number: 877-873-8018;
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2.
Enter the Access Code: 9911153 (Participants will be put on hold until the
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Court activates the conference call);
3.
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Enter the Participant Security Code 07130428 and Press # (The security code
will be confirmed);
4.
Once the Security Code is confirmed, participants will be prompted to Press
1 to join the conference or Press 2 to re-enter the Security Code.
IT IS SO ORDERED.
Dated: July 10, 2018
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18cv0428 DMS (MDD)
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