1 ROBERT P. VARIAN, State Bar No. 107459
M. TODD SCOTT, State Bar No. 226885 2 ALEXANDER K. TALARIDES, State Bar No. 268068
3 ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street
4 San Francisco, CA 94105 Telephone: (415) 773-5700
5 Facsimile: (415) 773-5759
Email: rvarian@orrick.com 6

7 JULIA HARUMI MASS, State Bar No. 189649 JINGNI (JENNY) ZHAO, State Bar No. 284684

8 MICHAEL T. RISHER, State Bar No. 191627

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

9 OF NORTHERN CALIFORNIA

10

39 Drumm Street San Francisco, CA 94111

11 Telephone: (415) 621-2493 Facsimile: (415) 255-8437

12 Email: jmass@aclunc.org

13 Attorneys for Plaintiffs

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

AUDLEY BARRINGTON LYON, JR., EDGAR CORNELIO, JOSÉ ELIZANDRO

17 ASTORGA-CERVANTES, and LOURDES HERNANDEZ-TRUJILLO, on behalf of

18 themselves and all others similarly situated,

Case No.:
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

19

Plaintiffs,

vs. 20
UNITED STATES IMMIGRATION AND

21 CUSTOMS ENFORCEMENT; JOHN

SANDWEG, Acting Director of U.S. 22 Immigration and Customs Enforcement,

23

UNITED STATES DEPARTMENT OF HOMELAND SECURITY; JEH JOHNSON,

24 Secretary of Homeland Security; and TIMOTHY AITKEN, Director of the San

CLASS ACTION

25 Francisco Field Office of U.S. Immigration and

Customs Enforcement, 26
Defendants.

27

1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION ......................................................................................................................... 1

4 JURISDICTION............................................................................................................................. 3
5 VENUE .......................................................................................................................................... 3 INTRADISTRICT ASSIGNMENT............................................................................................... 3
6 PARTIES ....................................................................................................................................... 3
7 ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF .................................................. 6

8

Background on Removal Proceedings ............................................................................... 6

9

Immigration Detention in Northern California .................................................................. 8

10

Defendants’ Denial and Restriction of Telephone Access Results in................................ 9

a Dramatic Disparity of Outcomes..................................................................................... 9

11

Defendants’ Denial and Restriction of Plaintiffs’ Telephone Access.............................. 10

12

Denial of Right to Legal Representation.......................................................................... 12

13

Denial of Right to Gather and Present Evidence ............................................................. 14

14

Prolonged Incarceration ................................................................................................... 15

ADDITIONAL ALLEGATIONS RE INDIVIDUAL PLAINTIFFS .......................................... 16 15

Audley Barrington Lyon, Jr ............................................................................................. 16

16

Edgar Cornelio ................................................................................................................. 17

17

José Elizandro Astorga-Cervantes ................................................................................... 17

18

Lourdes Hernandez-Trujillo............................................................................................. 18

19 CLASS ALLEGATIONS ............................................................................................................ 20 DECLARATORY RELIEF ALLEGATIONS............................................................................. 22
20 FIRST CLAIM FOR RELIEF...................................................................................................... 23
21 SECOND CLAIM FOR RELIEF ................................................................................................ 23

22 THIRD CLAIM FOR RELIEF .................................................................................................... 24

23 PRAYER FOR RELIEF............................................................................................................... 25

24

25

26

27

28

-i-

1 INTRODUCTION
2 1. This is a class action for injunctive and declaratory relief necessary to remedy
3 ongoing violations of the constitutional and statutory rights of immigrants held in government
4 custody pending deportation proceedings. Because such proceedings seek to deprive immigrants
5 of the opportunity to live and work in the United States, the United States Constitution and
6 federal statutes afford them substantive and procedural rights, including the right to be
7 represented by counsel, the right to gather and present evidence, and the right to a fair hearing.
8 Those rights (and others) are systematically denied by Defendants.
9 2. Plaintiffs Audley Barrington Lyon, Jr., Edgar Cornelio, José Elizandro Astorga-
10 Cervantes, and Lourdes Hernandez-Trujillo (“Individual Plaintiffs”) bring this class action
11 lawsuit to challenge policies and practices that deny and severely restrict their ability to make
12 telephone calls necessary to consult with or obtain counsel, to gather information and evidence
13 necessary for their cases, and to obtain a fair hearing while in government custody.
14 3. Individual Plaintiffs and the class they seek to represent (collectively, “Plaintiffs”)
15 are held in detention facilities under the custody of Defendant Immigration and Customs
16 Enforcement (“ICE”) pending resolution of ICE’s charges that they should be deported or
17 “removed” from the United States. Respondents in immigration proceedings are not entitled to
18 appointed counsel and most in northern California are held in remote locations that render in-
19 person visits impractical at best. Telephone access is therefore critical to Plaintiffs’ ability to
20 locate, retain and seek advice from legal counsel. For those who cannot afford an attorney and
21 are not able to retain pro bono counsel, telephone contact with the outside world is essential to
22 gather the evidence and government documents essential to defending removal charges, locate
23 witnesses, and do other things necessary to represent themselves in complex legal proceedings.
24 It is also necessary to enable Plaintiffs to exercise their First Amendment rights to petition
25 government agencies to obtain immigration benefits and related documents that may provide
26 relief from removal.
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1 4. However, ICE, and its parent agency, the Department of Homeland Security
2 (“DHS”), have engaged in a common course of conduct that severely restricts Plaintiffs’
3 telephone access in violation of their rights under the United States Constitution and the
4 Immigration and Nationality Act (the “Act”).
5 5. Defendants’ policies, practices, and omissions in denying and restricting
6 telephone access have a dramatic impact on the outcomes of removal proceedings. As a result of
7 Defendants’ conduct, many Plaintiffs who would be eligible to remain in the United States are
8 deported.
9 6. Many Plaintiffs are also unnecessarily detained for months. Such prolonged
10 incarceration is a direct result of Defendants’ violations of Plaintiffs’ constitutional and statutory
11 rights -- not as punishment for conviction of a crime. Plaintiffs are forced to seek continuances
12 while they struggle to locate, retain and communicate with counsel, to gather evidence to be
13 presented in the removal proceedings, and to obtain documents and immigration benefits that can
14 provide relief from removal. There are even some Plaintiffs who would accept a removal order
15 much earlier in the process if they were able to obtain legal consultation over the telephone --
16 sparing themselves and the taxpayer the significant costs of detention.
17 7. For these reasons, the Individual Plaintiffs seek to represent a class of all current
18 and future adult immigration detainees who, like the Individual Plaintiffs, are or will be held in
19 ICE custody in its northern California immigration detention facilities (which are located in
20 Contra Costa County, Sacramento County, and Yuba County) (the “Class”), and to obtain an
21 order from this Court enjoining the policies, practices, and omissions that are preventing
22 Plaintiffs from realizing their statutory and constitutional rights, including the promise of due
23 process in immigration proceedings.
24
25
26
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1 JURISDICTION
2 8. This Court has subject-matter jurisdiction over this matter under 28 U.S.C. § 1331
3 (federal question), 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 5 U.S.C. § 706 (waiver
4 of sovereign immunity).
5 VENUE
6 9. Venue is proper in the Northern District of California under 28 U.S.C. §§ 1391(b)
7 and (e) because a substantial part of the events and omissions giving rise to Plaintiffs’ claims
8 occurred, and continues to occur, in this District.
9 INTRADISTRICT ASSIGNMENT
10 10. Assignment to the San Francisco Division of this Court is proper under Local
11 Rule 3-2(d) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims
12 occurred, and continues to occur, in San Francisco County.
13 PARTIES
14 11. Plaintiff Audley Barrington Lyon, Jr. is in ICE custody at the West County
15 Detention Facility in the city of Richmond, Contra Costa County, California (the “Richmond
16 Facility”) and has removal proceedings pending in the San Francisco Immigration Court. He is
17 seeking a U visa as a victim of and witness to a crime under 8 U.S.C. § 1101(a)(15)(U) and may
18 seek cancellation of removal under 8 U.S.C. § 1229b. Defendants’ restrictions on telephone
19 access in immigration detention have harmed and will continue to harm Plaintiff Lyon by, inter
20 alia, denying or severely restricting his ability to obtain information and documents necessary to
21 support his U visa application.
22 12. Plaintiff Edgar Cornelio is in ICE custody at the Richmond Facility and has
23 removal proceedings pending in the San Francisco Immigration Court. He is seeking relief from
24 removal in the form of asylum under 8 U.S.C. § 1158 because he faces persecution by gangs if
25 deported to Guatemala. Defendants’ restrictions on telephone access in immigration detention
26 have harmed and will continue to harm Plaintiff Cornelio by, inter alia, denying or severely
27 -3

1 restricting his ability to consult with or retain an attorney and his ability to gather information
2 and evidence to support his asylum petition.
3 13. Plaintiff José Elizandro Astorga-Cervantes is in ICE custody at the Rio Cosumnes
4 Correction Facility in the city of Elk Grove, Sacramento County, California (the “Elk Grove
5 Facility”). Plaintiff Astorga-Cervantes intends to seek release from custody by demonstrating to
6 an immigration judge or ICE that he does not pose a risk of flight or a danger to society. He also
7 intends to apply for relief from removal under former § 212(c) of the Immigration and
8 Nationality Act. Defendants’ restrictions on telephone access have harmed and will continue to
9 harm Plaintiff Astorga-Cervantes by, inter alia, preventing him from contacting attorneys for
10 legal advice or representation and denying or severely restricting his ability to gather information
11 and evidence in support of his release from custody and § 212(c) waiver of inadmissibility.
12 14. Plaintiff Lourdes Hernandez-Trujillo is in ICE custody at the Yuba County Jail
13 (the “Yuba Facility”) and has removal proceedings pending in the San Francisco Immigration
14 Court. She is seeking relief from deportation and is applying for a U visa as a victim of and
15 witness to a violent crime under 8 U.S.C. § 1101(a)(15)(U), and for protection relief under 8
16 U.S.C. § 1231(b)(3). Like other members of the Class, Plaintiff Hernandez-Trujillo has been
17 transferred between facilities during her incarceration, and restrictions on telephone access have
18 harmed and will continue to harm Plaintiff Hernandez-Trujillo by, inter alia, extending her pre-
19 hearing detention by several months and by denying or severely restricting her ability to consult
20 with counsel.
21 15. Plaintiffs Lyon, Cornelio, Astorga-Cervantes and Hernandez-Trujillo are referred
22 to herein collectively as the Individual Plaintiffs.
23 16. Defendant ICE is a federal law enforcement agency within DHS. ICE is
24 responsible for the criminal and civil enforcement of the immigration laws, including the
25 detention, incarceration and removal of immigrants. ICE discharges its responsibility for
26 incarceration of immigrants by: (1) promulgating detention standards to be followed in the
27 -4

1 facilities in which immigrants are held pending removal hearings, including with respect to
2 telephone access; and (2) contracting with the government entities and private corporations that
3 operate detention facilities, including the facilities in which all members of the Class are
4 incarcerated. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and
5 oversees the immigration detention system.
6 17. Under the terms of ICE’s contracts with the jails in which Plaintiffs are
7 incarcerated, the federal government pays a specified amount of money per immigration detainee
8 per night to house detainees in accordance with ICE’s detention standards.
9 18. ICE’s most recent set of standards purporting to govern conditions of confinement
10 in ICE custody are the 2011 Performance-Based National Detention Standards (“National
11 Detention Standards”), available at http://www.ice.gov/detention-standards/2011 (last visited
12 Dec. 17, 2013).
13 19. Defendant John Sandweg is the Acting Director of ICE. As Acting Director,
14 Defendant Sandweg is responsible for ICE’s policies, practices and procedures, including those
15 relating to the detention of immigrants during their removal proceedings.
16 20. Defendant DHS is the arm of the federal government responsible for the
17 enforcement and administration of the immigration laws. The component agencies of DHS
18 include ICE; United States Citizenship and Immigration Services (“CIS”), which administers the
19 legal immigration system and grants immigration benefits; and United States Customs and
20 Border Protection (“CBP”), which apprehends individuals suspected of unauthorized entry at and
21 around the border.
22 21. Defendant Jeh Johnson is the Secretary and highest-ranking member of DHS. As
23 Secretary of DHS, Defendant Johnson is responsible for DHS’s policies, practices, and
24 procedures and exercises authority and oversight over ICE.
25 22. Defendant Timothy Aitken is the Field Office Director for the San Francisco Field
26 Office of ICE. The San Francisco Field Office is responsible for carrying out ICE’s immigration
27 -5

1 detention and removal operations in northern California, Hawaii, and Guam. As Director,
2 Defendant Aitken oversees the San Francisco Field Office’s functions and implementation of its
3 detention standards, including with respect to telephone access.
4 23. Defendants Sandweg, Johnson and Aitken are sued in their official capacities
5 only.
6 ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
7 Background on Removal Proceedings
8 24. Deportation or “removal” proceedings begin when DHS issues a Notice to Appear
9 (“NTA”) charging an immigrant as removable. Removal cases are adjudicated by the
10 immigration courts in the first instance and are reviewed by the Board of Immigration Appeals
11 (“BIA”). Both the immigration courts and the BIA are part of the Executive Office for
12 Immigration Review within the United States Department of Justice. Decisions of the BIA are
13 reviewable by the United States Courts of Appeals.
14 25. The initial appearance in removal proceedings is the master calendar hearing. At
15 this hearing, the immigration judge advises the respondent of his or her rights with respect to the
16 hearing, asks whether the respondent wishes to fight removal and whether he intends to seek
17 legal advice or representation, and may take pleas on the charges in the NTA. Once the
18 respondent is prepared to proceed with his case, the immigration judge will set the case for an
19 evidentiary hearing on removability, relief from removability, and other issues that determine
20 whether the respondent will be permitted to remain in the United States, or deported. See
21 generally Executive Office for Immigration Review, Immigration Judge Benchbook, available at
22 http://www.justice.gov/eoir/vll/benchbook/ (last visited Dec. 18, 2013).
23 26. An immigrant facing removal proceedings may contest the charges on which ICE
24 and DHS seek removal. For example, a respondent can demonstrate that he is in fact a U.S.
25 citizen, or -- if alleged to be removable because of a criminal offense -- that he was not convicted
26
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1 of the alleged offense, or that the offense is not a removable offense. If the charges of
2 removability are not sustained, the removal proceedings are terminated.
3 27. An immigrant facing removal proceedings may also seek relief from removal.
4 For example, an immigration judge may grant “cancellation of removal” based on certain
5 statutory eligibility requirements and evidence demonstrating compelling reasons for being
6 permitted to remain in the United States. 8 U.S.C. § 1229b. To secure cancellation of removal,
7 an immigrant must prove his worthiness for discretionary relief through evidence such as
8 employment records and letters of support or live testimony from community members. The
9 respondent may also apply for “protection relief,” shorthand for asylum, withholding of removal,
10 and relief under the Convention Against Torture, which are related forms of relief available to
11 immigrants who would face harm if returned to their native countries. All forms of protection
12 relief have different requirements and standards, but generally require presentation of detailed
13 evidence, including affidavits, testimony and documents. See 8 U.S.C. §§ 1158; 1231(b)(3); 8
14 C.F.R §§ 208.16-208.18.
15 28. Other forms of statutory relief from removal are granted by CIS, the component
16 of DHS that administers immigration benefits. For example, immigrants in removal proceedings
17 who have been injured as victims of crime and are able to obtain a “certification” from a law
18 enforcement agency that they assisted in the investigation or prosecution of the crime may obtain
19 a U visa. 8 U.S.C. § 1101(a)(15)(U). The grant of a U visa results in termination of removal
20 proceedings and allows the crime victim to remain in the United States.
21 29. With some exceptions, immigrants held in ICE custody can request a bond
22 redetermination hearing at which an immigration judge reviews ICE’s initial custody
23 determination. At this hearing, which is separate from evidentiary hearings on removability and
24 relief from removability, the immigrant has the right to present evidence to demonstrate that he is
25 neither a danger to the community nor a flight risk. This evidence may include, among other
26
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1 things, the immigrant’s own testimony, testimony from third-party witnesses, and documentary
2 evidence of his good character and community ties.
3 30. In order to seek release on bond, most detained immigrants seek legal
4 representation. If they cannot afford to hire an attorney and are unable to secure pro bono
5 representation, they need to obtain legal advice and independently gather information and
6 evidence in connection with bond redetermination hearings.
7 31. Of all immigration proceedings completed in fiscal year 2011, 42% involved
8 respondents who were detained during the proceedings. Lenni B. Benson & Russell R. Wheeler,
9 Enhancing Quality and Timeliness in Immigration Removal Adjudication, at 19 (June 7, 2012),
10 available at http://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-
11 Timeliness-in-Immigration-Removal-Adjudication-Final-June-72012.pdf (last visited Nov. 24,
12 2013).
13 Immigration Detention in Northern California
14 32. In addition to obstacles generated by incarceration, English language limitations,
15 and the complexity of the immigration and procedural law governing removal proceedings and
16 relief from removal, Plaintiffs’ efforts to exercise their rights to be represented by counsel,
17 gather and present evidence, and obtain a fair hearing are restricted by geographic isolation. In
18 many cases telephone communication provides the only avenue through which Plaintiffs can
19 secure and exercise those rights.
20 33. ICE contracts with Yuba County, Sacramento County, and Contra Costa County
21 to hold immigration detainees in the Yuba, Elk Grove and Richmond Facilities.
22 34. Plaintiffs are geographically isolated from the San Francisco Immigration Court,
23 and from the immigration attorneys who practice removal defense, most of whom are based in or
24 near San Francisco. Of the three detention facilities, only the Richmond Facility is within an
25 hour’s drive from San Francisco. The Yuba and Elk Grove Facilities are several hours away
26 from San Francisco.
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1 35. Many Plaintiffs are also geographically isolated from their families and others
2 who might provide assistance in obtaining documents and other evidence necessary to defend
3 against removal or seek relief from deportation.
4 36. The effects of Plaintiffs’ geographical isolation are compounded by the fact that
5 ICE frequently transfers detainees among detention facilities based on the agency’s operational
6 needs. Between 1998 and 2010, 40% of detainees experienced at least one transfer, and 46% of
7 those detainees were transferred two or more times. See Human Rights Watch, A Costly Move:
8 Far and Frequent Transfers Impede Hearings for Immigrant Detainees in the United States, at
9 17 (June 2011), available at
10 http://www.hrw.org/sites/default/files/reports/us0611webwcover_0.pdf (last visited Nov. 24,
11 2013).
12 37. All of the immigration detainees in the Yuba, Elk Grove, and Richmond Facilities
13 have, have had, or may have proceedings in the San Francisco Immigration Court located at 630
14 Sansome Street. Most have active removal proceedings in the San Francisco Immigration Court.
15 Other detainees had removal proceedings in the San Francisco Immigration Court, and are
16 deciding whether to appeal to the BIA or are awaiting the outcome of their appeals. Some await
17 an agency determination as to whether they will have a hearing in the San Francisco Immigration
18 Court based on reasonable fear of returning to their home countries.
19 Defendants’ Denial and Restriction of Telephone Access Results in
20 a Dramatic Disparity of Outcomes
21 38. Defendants’ denial and restriction of telephone access in these circumstances
22 denies or severely limits Plaintiffs’ statutory and constitutional rights to retain counsel, to
23 communicate with retained counsel, to gather and present evidence, to obtain a fair hearing, and
24 to apply for immigration benefits from CIS in seeking relief from removal, with a dramatic and
25 devastating impact on Plaintiffs.
26
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1 39. Of all removal proceedings completed in San Francisco in fiscal year 2011, only
2 34% of detained respondents were able to exercise their right to retain counsel, compared to 75%
3 of non-detained respondents. Enhancing Quality and Timeliness, supra ¶ 31, at 127. Of all
4 removal proceedings completed in San Francisco in fiscal year 2011, only 11% of detained
5 respondents had successful outcomes in their cases, compared to 59% of non-detained
6 respondents. Transactional Records Access Clearinghouse, Immigration Court Processing Time
7 by Outcome, available at
8 http://trac.syr.edu/phptools/immigration/court_backlog/court_proctime_outcome.php (last visited
9 Nov. 24, 2013).
10 Defendants’ Denial and Restriction of Plaintiffs’ Telephone Access
11 40. Defendants’ policies, practices, and omissions in denying and restricting
12 telephone access violate Plaintiffs’ statutory and constitutional rights in numerous ways. They
13 also violate ICE’s own detention standards with respect to telephone access, which are both
14 deficient and not adhered to or enforced by Defendants. See National Detention Standards,
15 Telephone Access, available at http://www.ice.gov/doclib/detention-
16 standards/2011/telephone_access.pdf (last visited Nov. 24, 2013).
17 41. Although ICE’s National Detention Standards on telephone access provide that
18 detention facilities must operate a system that permits detained immigrants to make free calls to
19 and leave voicemail messages for nonprofit legal services providers and certain government
20 entities (referred to in the National Detention Standards as the “free call platform”), id. at 361-
21 63, the free call platform is ineffectual and has little practical impact on the ability of immigrants
22 in ICE custody to obtain counsel, gather evidence or secure their rights to a fair removal
23 hearing.1 24
25 1 Unless otherwise specified, the remainder of allegations in this section of the complaint are 26 related to the telephone system detainees must use to reach anyone that is not included on the
free call platform, i.e. the substantial majority of immigration attorneys; all local, state and 27 federal government offices outside of DHS; and private parties.
- 10

1 42. In general, there are three ways to make a telephone call from immigration
2 detention in the Yuba, Elk Grove, and Richmond Facilities: A detainee can place a collect call,
3 in which the recipient agrees to accept the charges for the call. A family member or friend can
4 contact the telephone service provider for the detention facility to establish a prepaid account,
5 which funds a detainee’s calls to a specific telephone number. In the Yuba and Elk Grove
6 Facilities, a detainee can use his own money to purchase a calling card.
7 43. The telephone systems in the detention facilities allow a call to be completed only
8 if a live person answers the telephone and accepts the call (by pressing a number in response to a
9 prompt), even if a prepaid account has been established. If a recorded greeting begins to play,
10 the call is disconnected. Consequently, Plaintiffs cannot leave voicemail messages even to
11 parties who have set up prepaid accounts or on calls Plaintiffs are willing and able to pay for
12 through calling cards. Plaintiffs are also unable to complete calls to offices that use voicemail
13 trees, i.e., automated systems that require selection of options to reach a live person.
14 44. At each of the immigration detention facilities in northern California, many
15 Plaintiffs spend up to 22 hours a day confined to their cells. They are permitted to make
16 telephone calls only during “free time,” which occurs at inconsistent hours and often early in the
17 morning or at night. Thus, Plaintiffs cannot reliably arrange to call people at particular times.
18 When free time occurs outside of business hours, Plaintiffs are unable to reach law offices or any
19 other offices. Cf. id. at 362 (detainees shall be provided “reasonable and equitable access to
20 telephones during established facility ‘waking hours’”).
21 45. Because the telephones that Plaintiffs are allowed to use are located in the
22 common areas of each housing unit, Plaintiffs have absolutely no privacy when making
23 privileged calls to current or prospective attorneys, which are often about sensitive topics. Cf. id.
24 at 364 (facilities shall ensure privacy for legal calls and may do so by installing privacy panels,
25 placing telephones in locations where conversations are not readily overheard, or by providing
26 detainees access to office telephones).
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1 46. Plaintiffs’ ability to locate, retain and communicate with counsel, and to gather
2 and present evidence in their removal proceedings, is further restricted by the fact that telephone
3 calls from each of the northern California immigration detention facilities are unreasonably --
4 and often prohibitively -- expensive. In the Richmond Facility, for example, an intrastate, long-
5 distance call costs $3.00 to connect plus $0.25 per minute, totaling $5.50 for a ten-minute call,
6 making it prohibitively expensive for many members of the Class, who are indigent. Moreover,
7 calls automatically disconnect after 15 minutes, requiring Plaintiffs to pay a new connection fee
8 to continue their conversations. Cf. id. at 360 (facilities shall provide access to “reasonably
9 priced telephone services”); id. at 363 (“Indigent detainees are afforded the same telephone
10 access and privileges as other detainees.”).
11 47. Immigrants held in ICE custody are completely unable to receive incoming
12 telephone calls. Thus, attorneys, family members and others who might assist in gathering
13 evidence necessary to defend removal charges or seek relief from removal can contact Plaintiffs
14 only by mail or by in-person visitation.2 15
48. The basic technical features of the telephone systems -- such as the inability to 16
leave voicemail messages or penetrate voicemail trees and automatic disconnection after 15 17
minutes of conversation -- are common across all housing units and detention facilities. 18
49. Moreover, it is common for Plaintiffs to be moved among housing units within 19
the same detention facility and among detention facilities in northern California. 20
Denial of Right to Legal Representation 21
50. The capacity of nonprofit legal services providers in northern California to 22
provide representation for detained immigrants is very limited. 23

24

25

26

2 Sacramento County permits incoming messages via an online system, but the system

27 cannot be used for confidential communications because all messages are reviewed by jail staff.

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1 51. The bulk of the legal representation for detained immigrants is provided by the
2 private immigration bar, sometimes on a low-fee or sliding scale basis, and occasionally on a pro
3 bono basis.
4 52. The restriction and denial of telephone access makes it extremely difficult, and
5 often impossible, for Plaintiffs to secure private counsel from within detention facilities.
6 Plaintiffs often obtain the names and telephone numbers of attorneys who represent detained
7 immigrants through word of mouth in the detention facility, but restrictions on telephone access
8 prevent Plaintiffs from contacting those attorneys. Some Plaintiffs are confined to their cells for
9 most of the day; many lack sufficient funds to make calls. Plaintiffs who are able to access the
10 telephones during business hours and pay for calls are stymied by the inability to leave voicemail
11 messages and navigate voicemail trees, and it is impossible for the attorneys to call or arrange
12 calls with Plaintiffs to follow up on their requests for representation.
13 53. Although immigrants held in ICE custody can sometimes locate counsel through
14 family members, many Plaintiffs do not have family members or friends who are able and
15 willing to help them retain counsel. Many Plaintiffs have been transferred far from their
16 communities, sometimes without the knowledge of those who might otherwise attempt to assist
17 in locating counsel. Some Plaintiffs are eligible for immigration relief based on abusive
18 domestic relationships and cannot rely on their partners to facilitate that relief. In addition, when
19 Plaintiffs must funnel their communications with counsel through family members, they are
20 forced to compromise the attorney-client privilege.
21 54. ICE’s free call platform can rarely help Plaintiffs secure counsel. Half of the
22 organizations on the list that are designated as free legal services providers do not accept the
23 cases of immigrants who are detained during their removal proceedings. Most of the
24 organizations that do represent detained immigrants can only accept a low volume of “detained
25 cases” due to resource constraints. Accordingly, one immigration judge in San Francisco
26
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1 routinely advises detained immigrants to look for private counsel because the nonprofit legal
2 services organizations are inundated with requests for assistance.
3 55. When Plaintiffs are able to locate and retain an attorney, the restriction and denial
4 of telephone access also severely undercut the effectiveness of the representation and Plaintiffs’
5 ability to gather evidence and obtain a fair hearing. Plaintiffs have limited ability to call their
6 attorneys, and their attorneys have no ability to call or arrange calls with Plaintiffs. Unlike
7 pretrial criminal defendants, who are detained in the county where their public defenders are
8 based, most Plaintiffs are incarcerated hours away from their attorneys. Legal correspondence to
9 and from ICE custody can take a week in each direction. Letters must be inspected to ensure that
10 they are indeed legal mail and do not contain contraband, and incoming letters must be opened in
11 the presence of the detainee to protect the confidentiality of legal mail. Moreover, some
12 Plaintiffs cannot communicate by mail because they cannot read or write in any language.
13 56. In addition, Defendants’ policies and practices restricting and denying telephone
14 access, in light of Plaintiffs’ geographic isolation and the inherent limitations on alternative
15 means of communication, impose logistical constraints that make it impossible for lawyers who
16 are otherwise willing and able to represent Plaintiffs in connection with removal proceedings to
17 do so, which further restricts and denies Plaintiffs’ right to be represented by counsel.
18 Denial of Right to Gather and Present Evidence
19 57. The denial and restriction of telephone access to immigrants in ICE custody also
20 prevent Plaintiffs, and particularly Plaintiffs who must represent themselves, from obtaining and
21 presenting evidence necessary to obtain a fair hearing. This includes evidence that would entitle
22 them to release from detention, relief from removal, or immigration benefits from CIS that would
23 terminate deportation proceedings. For example, a Plaintiff seeking relief from removal via a U
24 visa may need to contact a police department to obtain a police report, a hospital to obtain
25 medical records, or a district attorney’s office to obtain a law enforcement certification. Plaintiffs
26 seeking bond redetermination from an immigration judge may need to contact character
27 - 14

1 witnesses and obtain documentary evidence of their good works in the community, completion
2 of rehabilitation programs, or the financial hardship their detention imposes on their United
3 States citizen children.
4 58. Defendants’ restriction and denial of telephone access make it difficult or
5 impossible for Plaintiffs to obtain this documentation while held in ICE custody. Even in the
6 rare circumstance when Plaintiffs are theoretically able to make a telephone call during business
7 hours that is not blocked by Defendants’ technological barriers, the prohibitive telephone rates
8 render most Plaintiffs unable to actually complete the call.
9 Prolonged Incarceration
10 59. In addition to denying their Plaintiffs’ statutory and constitutional rights to be
11 represented by counsel, to gather and present evidence, to a fair hearing and to meaningful
12 participation in proceedings in which ICE seeks to remove Plaintiffs from the United States,
13 Defendants’ restriction and denial of telephone access to immigrants held in ICE custody
14 substantially prolongs Plaintiffs’ incarceration pending removal hearings. At master calendar
15 hearings, Plaintiffs are forced to ask the immigration judge for a continuance to retain counsel, to
16 prepare their cases, or simply to obtain legal advice that permits them to make an informed
17 decision whether to seek relief from deportation or accept a removal order. Some Plaintiffs state
18 during their master calendar hearings that lack of telephone access is the reason they need a
19 continuance. Plaintiffs routinely seek and receive multiple continuances.
20 60. The prolonged periods of incarceration resulting from Defendants’ restriction and
21 denial of telephone access to immigrants held in ICE custody deprives Plaintiffs of their
22 freedom, not as punishment for conviction of a crime, but rather because Defendants’ policies
23 and practices have made it difficult or impossible for Plaintiffs to exercise their statutory and
24 constitutional rights. The fact that Plaintiffs are willing to endure prolonged incarceration in
25 their efforts to obtain those rights underscores the egregiousness of the violations alleged herein.
26
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1 ADDITIONAL ALLEGATIONS RE INDIVIDUAL PLAINTIFFS
2 Audley Barrington Lyon, Jr.
3 61. Plaintiff Audley Barrington Lyon, Jr. is a 34-year-old man currently in ICE
4 custody in the Richmond Facility. He entered the United States as a lawful permanent resident
5 when he was approximately ten years old.
6 62. Plaintiff Lyon seeks relief from removal in the form of a U visa, as the victim of a
7 shooting who cooperated with the East Palo Alto Police Department in connection with the
8 crime.
9 63. Mr. Lyon cannot afford to retain an immigration attorney.
10 64. Due to Defendants’ denial of telephone access to immigration detainees, Mr.
11 Lyon is unable to call the East Palo Alto Police Department to obtain a police report and the law
12 enforcement certification required for his U visa application. Because the Richmond Facility
13 does not permit detainees to purchase calling cards or phone credit, Mr. Lyon’s only option is to
14 place a collect call to the police department. Government agencies, however, generally do not
15 accept collect calls.
16 65. Mr. Lyon is relying on his wife to assist him with his U visa application.
17 However, Mr. Lyon’s wife earns limited income and cannot afford to accept collect calls or
18 establish a prepaid account to accept calls from Mr. Lyon. Instead, Mr. Lyon and his wife are
19 communicating with one another regarding his U visa application by mail.
20 66. Mr. Lyon’s wife attempted to obtain a police report on his behalf, but was
21 informed that the police department would only release the report to Mr. Lyon or his legal
22 representative.
23 67. Defendants’ restrictions on telephone access have denied or severely obstructed
24 Mr. Lyon’s attempts to apply for a U visa.
25
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1 Edgar Cornelio
2 68. Plaintiff Edgar Cornelio is a 36-year-old man currently in ICE custody in the
3 Richmond Facility. He has lived continuously in the United States since approximately 1995.
4 69. Plaintiff Cornelio seeks relief from removal in the form of asylum because he
5 faces persecution by gangs if deported to Guatemala.
6 70. While in detention, Mr. Cornelio has been unable to search for an immigration
7 attorney due to Defendants’ denial of telephone access. He received a list of free legal services
8 providers from ICE, but the Richmond Facility does not permit detainees to purchase calling
9 cards. Mr. Cornelio has attempted to place collect calls to the legal services providers on the list,
10 but those organizations generally do not accept collect calls.
11 71. Mr. Cornelio has requested and received several two or three-week continuances
12 while attempting to locate an attorney, prolonging his time in custody.
13 72. Defendants’ denial of telephone access has also impeded Mr. Cornelio’s efforts to
14 prepare to represent himself at his asylum hearing. It is impossible for detainees in the
15 Richmond Facility to make international calls. Thus, Mr. Cornelio is unable to contact his
16 family members in Guatemala to obtain information and evidence that is critical to his asylum
17 claim.
18 José Elizandro Astorga-Cervantes
19 73. Plaintiff José Elizandro Astorga-Cervantes is a 52-year-old man currently in ICE
20 custody in the Elk Grove Facility. He has lived in the United States since he was a child and
21 became a lawful permanent resident of the United States in 1977.
22 74. Plaintiff Astorga-Cervantes is attempting to seek release from custody by
23 demonstrating to an immigration judge or ICE that he does not pose a risk of flight or a danger to
24 society. He also intends to apply for relief from removal under former § 212(c) of the
25 Immigration and Nationality Act, a form of discretionary relief similar to cancellation of
26 removal. Release from custody and § 212(c) relief both require letters or testimony from family
27 - 17

1 and community members who can attest to Mr. Astorga-Cervantes’s character and community
2 ties.
3 75. Due to Defendants’ telephone access policies and practices, Mr. Astorga-
4 Cervantes has been almost completely unable to speak to his family members and community
5 contacts in connection with his efforts to secure release from custody and immigration relief.
6 Mr. Astorga-Cervantes does not have sufficient funds in his inmate account to purchase phone
7 credit.
8 76. Mr. Astorga-Cervantes is also unable to complete a collect call to his home. As
9 Mr. Astorga-Cervantes was the primary income earner in his household, his family now faces
10 severe financial strain and cannot afford to pay for expensive telephone calls from detention.
11 Lourdes Hernandez-Trujillo
12 77. Plaintiff Lourdes Hernandez-Trujillo is a 29-year-old woman currently in ICE
13 custody in the Yuba Facility. Her parents brought her to the United States when she was less
14 than one year old.
15 78. Plaintiff Hernandez-Trujillo seeks two types of relief from removal. In
16 immigration court, she is applying for protection relief -- withholding of removal and relief
17 under the Convention Against Torture -- based on abuse and fear of abuse and torture by her ex-
18 husband if she is returned to Mexico. Plaintiff Hernandez-Trujillo has also submitted a U visa
19 application based on her status as a crime victim and her cooperation with the Yolo County
20 Police Department in connection with the crime and is awaiting the decision of CIS.
21 79. During Ms. Hernandez-Trujillo’s first several months in immigration custody in
22 the Sacramento County Main Jail, her ability to communicate with the outside world to obtain
23 legal assistance and advocate for herself was severely limited by Defendants’ restrictive
24 telephone access policies and practices. She was locked in her cell for 22 hours a day with no
25 access to a telephone. Moreover, she was indigent and had no means of paying for telephone
26
27 - 18

1 calls to law offices. She wrote dozens of letters to immigration attorneys listed in the phone
2 book, pleading for help.
3 80. Defendants’ denial and restriction of telephone access to immigrants held in ICE
4 custody prevented Plaintiff Hernandez-Trujillo from obtaining the law enforcement certification
5 required for her U visa application. Ms. Hernandez could only communicate with the police
6 department by mail, first to inquire into how to request a police report and U visa certification,
7 and then to submit the required information. Without the ability to explain her request by
8 telephone, she could not obtain the required certification. It was only after retaining counsel that
9 Plaintiff Hernandez-Trujillo was able to secure the documents required to seek relief from
10 removal.
11 81. Plaintiff Hernandez-Trujillo requested and received at least five continuances
12 from the immigration judge, prolonging her incarceration while she struggled to secure legal
13 representation. Around March 2013, she was eventually able to retain an immigration attorney
14 in private practice who agreed to provide pro bono representation after a person at the Mexican
15 consulate read a letter she had mailed and contacted a number of immigration attorneys on her
16 behalf.
17 82. Defendants’ denial and restriction of telephone access has continued to severely
18 undercut Plaintiff Hernandez-Trujillo’s statutory and constitutional right to be represented by
19 counsel after she retained counsel. Ms. Hernandez-Trujillo was transferred to the Yuba Facility
20 in April 2013. Her attorney worked at a small law office in San Francisco that did not employ a
21 receptionist to answer the phone, and the telephones in immigration detention could not penetrate
22 the voicemail tree. Her attorney now practices at Centro Legal de la Raza, a nonprofit legal
23 services provider in Oakland, which also utilizes an automated voicemail tree, and under
24 Defendants’ policies and practices, her attorney cannot call or schedule a call with Plaintiff
25 Hernandez-Trujillo.
26
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1 CLASS ALLEGATIONS
2 83. The Individual Plaintiffs bring this action on behalf of themselves and all others
3 similarly situated under Rule 23 of the Federal Rules of Civil Procedure. They propose the
4 following Class:
5

6

All current and future adult immigration detainees who are or will be held by ICE

7

in Contra Costa County, Sacramento County, or Yuba County.

8 84. Defendants have engaged in a common course of conduct that has denied
9 constitutional and statutory rights on a classwide basis, including by promulgating,
10 implementing, maintaining and enforcing the policies and practices that deny and restrict
11 Plaintiffs’ telephone access at the Richmond, Elk Grove and Yuba Facilities, and by failing to
12 take actions necessary to allow Plaintiffs to consult with or obtain representation by counsel, to
13 gather and present evidence, to petition government agencies to obtain immigration benefits and
14 documents necessary to seek relief from removal, and to obtain a fair hearing.
15 85. Plaintiffs seek injunctive and declaratory relief only, on grounds that apply
16 broadly to the Class as a whole.
17 86. Members of the Class are so numerous that joinder is impracticable. Plaintiffs are
18 informed and believe, and on that basis allege, that the Richmond, Elk Grove, and Yuba
19 Facilities hold a combined total of between 500 and 600 immigration detainees on an average
20 day.
21 87. Joinder is also impracticable because membership in the Class is fluid, as
22 immigration detainees are frequently released from custody, transferred to other regions of the
23 country, or removed from the United States. The Class includes individuals who will be
24 subjected to Defendants’ policies, practices, and omissions in the future and therefore cannot be
25 joined.
26

27 - 20

1 88. There are numerous questions of law and fact common to the Class, which
2 predominate over any individual questions, including:
3 (a) the extent to which Defendants’ policies, practices and omissions denying
4 and restricting telephone access interfere with Plaintiffs’ ability to consult with and retain
5 counsel; communicate effectively with counsel; and gather information and evidence in
6 support of their claims, defenses, and applications for relief;
7 (b) whether Defendants’ policies, practices and omissions in denying and
8 restricting telephone access violate Plaintiffs’ right to be represented by counsel under the
9 Fifth Amendment Due Process Clause, and the Act and its implementing regulations;
10 (c) whether Defendants’ policies, practices and omissions in denying and
11 restricting telephone violate Plaintiffs’ right to a fair hearing, and to gather and present
12 evidence, under the due process clause of the Fifth Amendment and the Act and its
13 implementing regulations;
14 (d) whether Defendants’ policies, practices and omissions in denying and
15 restricting telephone access violate the First Amendment’s Petition Clause by denying
16 and restricting the ability of Class members to obtain information, documents, and
17 immigration benefits that can provide relief from removal; and
18 (e) whether Defendants’ policies, practices and omissions violate the
19 detention standards promulgated by ICE with respect to telephone access.
20 89. The Individual Plaintiffs are members of the Class, and are subjected to telephone
21 access policies and practices that deny, violate and impair the constitutional and statutory rights
22 of the Class as a whole.
23 90. The Individual Plaintiffs will fairly and adequately represent the interests of the
24 class. Fed. R. Civ. P. 23(a)(4). They seek relief identical to the relief sought by all Class
25 members and have no interests adverse to other members of the Class. Plaintiffs are represented
26
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1 by pro bono counsel who are experienced in federal class action and civil rights litigation, and
2 will adequately represent the interests of the class.
3 91. A class action is superior to all other available methods for adjudicating this
4 controversy, and is manageable, because:
5 (a) Defendants are acting and refusing to act on grounds generally applicable
6 to the Class;
7 (b) many Class members are unaware of their legal rights, and are unable to
8 obtain individual counsel due to the conduct alleged herein;
9 (c) prosecution of individual actions would be impossible because individual
10 Class members would not remain in ICE custody pending removal proceedings long
11 enough to prosecute such actions to a conclusion;
12 (d) even if it were possible, prosecution of separate actions by individual
13 Class members would be inefficient, create a risk of conflicting or inconsistent
14 adjudications, and might, as a practical matter, be dispositive of the interests of individual
15 members of the Class;
16 (e) by virtue of Defendants’ roles in contracting with the jail facilities in
17 which Class members are held in ICE custody, in promulgating, implementing,
18 enforcing, and in failing to promulgate, implement and enforce, detention standards
19 relating to telephone access for Class members; and
20 (f) the injunctive and declaratory relief sought herein will enable Defendants to
21 formulate and implement measures necessary to address and remedy the constitutional
22 and statutory violations resulting from denial and restriction of telephone access, without
23 undue intrusion on legitimate governmental interests.
24 DECLARATORY RELIEF ALLEGATIONS
25 92. An actual and substantial controversy exists between Plaintiffs and Defendants as
26 to their respective legal rights and duties with respect to Defendants’ policies, practices and
27 - 22

1 omissions in denying and restricting telephone access to the Class. Plaintiffs contend that
2 Defendants’ policies, practices and omissions alleged herein violate their constitutional and
3 statutory rights as alleged in the foregoing paragraphs. Defendants deny that their policies,
4 practices and omissions violate Plaintiffs’ constitutional and statutory rights, and intend to
5 continue such conduct.
6 FIRST CLAIM FOR RELIEF
7 Right to Representation of Counsel
8 (Fifth Amendment Due Process Clause; 8 U.S.C. §§ 1362; 1229a(b)(4)(A))
9 93. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this
10 reference.
11 94. The due process clause of the Fifth Amendment guarantees Plaintiffs the right to
12 representation of counsel of their choice, at no expense to the government.
13 95. Plaintiffs also have a statutory right to representation of counsel at no expense to
14 the government under the Act. 8 U.S.C. §§ 1362; 1229a(b)(4)(A).
15 96. Defendants have violated Plaintiffs’ right to representation of counsel by denying
16 and severely restricting Plaintiffs’ ability to make telephone calls to locate, consult with, and
17 retain counsel, and Plaintiffs’ ability to communicate with retained counsel.
18 97. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of
19 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any
20 further injury.
21 SECOND CLAIM FOR RELIEF
22 Right to a Full and Fair Hearing
23 (Fifth Amendment Due Process Clause; 8 U.S.C. § 1229a(b)(4)(B))
24 98. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this
25 reference.
26
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1 99. The due process clause of the Fifth Amendment guarantees Plaintiffs the right to a
2 full and fair hearing of their removal cases, including a reasonable opportunity to gather and
3 present evidence.
4 100. Plaintiffs also have a statutory right to gather and present evidence in connection
5 with their removal proceedings under the Act. 8 U.S.C. § 1229a(b)(4)(B).
6 101. Defendants have violated Plaintiffs’ right to a full and fair hearing by denying and
7 severely restricting Plaintiffs’ ability to make telephone calls to gather information and obtain
8 evidence in support of their immigration cases.
9 102. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of
10 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any
11 further injury.
12 THIRD CLAIM FOR RELIEF
13 Right to Petition the Government for Redress of Grievances
14 (First Amendment Petition Clause)
15 103. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this
16 reference.
17 104. The First Amendment guarantees Plaintiffs the right to petition the government
18 for redress of grievances, including the right to petition a federal agency for immigration benefits
19 that, if granted, would result in termination of their removal proceedings.
20 105. Defendants have violated Plaintiffs’ right to petition the government by denying
21 and severely restricting the telephone access necessary to seek legal representation and obtain
22 documents and evidence in support of their applications for immigration benefits.
23 106. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of
24 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any
25 further injury.
26
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1 PRAYER FOR RELIEF
2 WHEREFORE, Plaintiffs respectfully request that the Court:
3 1. Issue an order certifying this action to proceed as a class action pursuant to Rule
4 23 of the Federal Rules of Civil Procedure.
5 2. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal
6 Rules of Civil Procedure.
7 3. Issue a judgment declaring that Defendants’ policies, practices, acts, and
8 omissions described herein violate Plaintiffs’ rights under the United States Constitution and the
9 Immigration and Nationality Act.
10 4. Enjoin Defendants, their subordinates, agents, employees, and all others acting in
11 concert with them from subjecting Plaintiffs to the unlawful conditions described herein, and
12 issue an injunction sufficient to remedy the violations of Plaintiffs’ constitutional and statutory
13 rights, including:
14 a. An order that Defendants afford sufficient time during business hours to complete
15 legal calls, and establish a process by which Plaintiffs can make legal calls outside
16 of free time;
17 b. An order that Defendants establish an adequate process by which immigration
18 attorneys can schedule legal calls with Plaintiffs;
19 c. An order that Defendants make reasonable accommodations for Plaintiffs who are
20 indigent and cannot afford to make legal calls;
21 d. An order that Defendants afford Plaintiffs the ability to make private,
22 unmonitored, unrecorded calls with attorneys, without being overheard by other
23 detainees or staff;
24 e. An order that Defendants afford Plaintiffs the ability to penetrate automated
25 telephone voicemail trees to make legal calls; and
26
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1 f. An order that Defendants afford Plaintiffs the opportunity to leave voicemail
2 messages when making legal calls.
3 5. Grant Plaintiffs their reasonable attorney fees and costs pursuant to the Equal
4 Access to Justice Act, 28 U.S.C. § 2412, and any other applicable law.
5 6. Grant such other relief as the Court deems just and proper.
6

7 Dated: December 19, 2013

ORRICK, HERRINGTON & SUTCLIFFE LLP

8

By: _/s/ Robert P Varian____________________

9

Robert P. Varian

10

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA

11

12

By: _/s/ Julia Harumi Mass__________________ Julia Harumi Mass

13

Attorneys for Plaintiffs

14

15

16

17

18

19

20

21

22

23

24

25

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 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

United States District Court For the Northern District of California

8 AUDLEY BARRINGTON LYON, JR., et al., on behalf of themselves and all others
9 similarly situated,

10

Plaintiffs,

11

v.

12 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
13 Defendants.
14 ___________________________________/

No. C-13-5878 EMC
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
(Docket No. 14)

15

16

Plaintiffs in this putative class action are Audley Barrington Lyon, Jr.; Edgar Cornelio; Jose

17 Elizandro Astorga-Cervantes; and Lourdes Hernandez-Trujillo. They have filed suit against the

18 Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”) and

19 certain employees of both agencies on the ground that their constitutional and statutory rights are

20 being violated while they are held in government custody pending deportation proceedings. In

21 particular, Plaintiffs assert that there are certain policies and practices in the Northern California

22 immigration detention facilities (located in Contra Costa County, Sacramento County, and Yuba

23 County) that “deny and severely restrict their ability to make telephone calls.” Compl. ¶ 2. This has

24 impacted Plaintiffs’ ability to obtain counsel, consult with counsel, and gather information and

25 evidence necessary for their immigration cases. In addition, the denial and restriction of telephone

26 access has substantially prolonged their incarceration because, e.g., they have been forced to ask for

27 continuances to retain counsel, consult with counsel, or prepare their cases.

28

United States District Court For the Northern District of California

1

In the currently pending motion, Plaintiffs seek class certification. For the reasons explained

2 below, the motion is GRANTED.

3

I. FACTUAL & PROCEDURAL BACKGROUND

4

Plaintiffs filed their complaint on December 19, 2013. In their complaint, they allege as

5 follows.

6

“ICE contracts with Yuba County, Sacramento County, and Contra Costa County to hold

7 immigration detainees in the Yuba, Elk Grove and Richmond Facilities.” Compl. ¶ 33. These

8 facilities are “geographically isolated from the San Francisco Immigration Court” as well as “the

9 immigration attorneys who practice removal defense, most of whom are based in or near San

10 Francisco.” Compl. ¶ 34. In addition, the facilities are often geographically isolated from detainees’

11 family members or friends who might be able to help them in their immigration proceedings.

12 Compl. ¶ 35. Because of this geographic isolation, communication by telephone is critical for

13 detainees in these facilities. See Compl. ¶ 32.

14

Apparently, detainees are not charged for making telephone calls to nonprofit legal service

15 providers and certain government entities, see Compl. ¶ 41 (discussing the “free call program”).

16 Otherwise, however, detainees appear to be charged for calls. In general, there are two ways to

17 make a telephone call from the Yuba, Elk Grove, and Richmond facilities: (1) a detainee can place a

18 collect call, or (2) a family member or friend can contact the telephone service provider for the

19 detention facility to establish a prepaid account which funds a detainee’s calls to a specific telephone

20 number. For the Yuba and Elk Grove facilities – but not the Richmond facility – there is also a third

21 option, namely, a detainee can use his own money to purchase a calling card. See Compl. ¶ 42.

22

The above system poses significant problems for detainees.

23 •

For the Richmond facility, the third option is not available. As a practical matter, this means

24

that a detainee will often have to rely on collect calls, and, not surprisingly, there is no

25

guarantee that the receiving party will accept the collect call. For example, if a government

26

entity is a receiving party, it likely will not accept a collect call. Even if a family member

27

would want to accept a collect call, the cost may still be an obstacle.

28

2

United States District Court For the Northern District of California

1•

For all facilities, the cost of phone calls is unreasonably expensive, particularly as many

2

detainees are indigent. See Compl. ¶ 46. For example, in the Richmond facility, “an

3

intrastate, long-distance call costs $3.00 to connect plus $0.25 per minute, totaling $5.50 for

4

a ten-minute call.” Compl. ¶ 46. The government admits this cost in its answer. See Ans. ¶

5

46. Notably, when a call automatically disconnects after 15 minutes, a detainee has to pay a

6

new connection fee to continue a conversation, thus increasing the cost of a call dramatically.

7

Aside from cost-related issues, there are other problems with telephone access at the

8 detention facilities. For example:

9•

A call can be completed “only if a live person answers the telephone and accepts the call.”

10

Compl. ¶ 43. This means that detainees cannot leave voicemail messages. See Compl. ¶ 43.

11

Also, detainees cannot complete calls to, e.g., offices that use “voicemail trees, i.e.,

12

automated systems that require selection of options to reach a live person.” Compl. ¶ 43. In

13

its answer, the government admits that “the telephone systems generally available to

14

detainees at the Yuba, Sacramento and Contra Costa facilities require a live person to answer

15

and accept any call; this feature is deemed necessary to prevent detainees, including criminal

16

inmates not in ICE custody but housed at the same facilities, from calling any crime victims

17

or leaving threatening messages.” Ans. ¶ 43.

18 •

Calls can be made during a detainee’s “free time” only, but free time often takes place early

19

in the morning or at night – i.e., not during business hours – and therefore detainees “are

20

unable to reach law offices or any other offices.” Compl. ¶ 44. Also, free time occurs at

21

inconsistent hours and therefore detainees “cannot reliably arrange to call people at particular

22

times.” Compl. ¶ 44.

23 •

Telephone calls automatically disconnect after 15 minutes. See Compl. ¶ 46. In their papers,

24

Plaintiffs maintain that this is disruptive even if, as the complaint suggests, a detainee may

25

make more than one 15-minute call in order to have a longer conversation. See Compl. ¶ 46.

26

In its answer, the government denies that there is an automatic disconnect at the Contra

27

Costa facilities; however, it admits that “a call placed from the Yuba facility or the

28

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United States District Court For the Northern District of California

1

Sacramento facility will be cut off after fifteen minutes in order to prevent ICE detainees and

2

criminal inmates housed at the facility from monopolizing the phones.” Ans. ¶ 46.

3•

Telephones that detainees are allowed to use are located in the common areas of each

4

housing unit, and therefore detainees “have absolutely no privacy when making privileged

5

calls to current or prospective attorneys, which are often about sensitive topics.” Compl. ¶

6

45.

7•

Detainees cannot receive incoming calls. See Compl. ¶ 47. In its answer, the government

8

admits that “attorneys cannot call or arrange calls with ICE detainees at the Contra Costa

9

facility.” Ans. ¶ 52.

10

All four named Plaintiffs have submitted declarations which address many of the above-

11 identified problems with telephone access at the facilities at issue.

12

1. Mr. Lyon. Mr. Lyon has been in custody since approximately October 22, 2013.

13 See Lyon Decl. ¶ 5. He is currently in custody at the West County Detention Facility in Richmond.

14 See Lyon Decl. ¶ 5. He does not have an attorney. See Lyon Decl. ¶ 7 (explaining that he cannot

15 afford one).

16

Mr. Lyon has not been able to gather evidence to support his claim that he is eligible for a U

17 visa as a victim of a violent crime. See Lyon Decl. ¶ 8. For example, he needs to get information

18 from the East Palo Alto Police Department and the victim services unit of the San Mateo District

19 Attorney’s Office, but neither accepts collect calls. See Lyon Decl. ¶ 8. As he is in a Richmond

20 facility, he does not have the option of calling them by using a calling card or phone credit. See

21 Lyon Decl. ¶ 8. And when Mr. Lyon’s wife has tried to get information from the police department

22 herself, she has been rejected. See Lyon Decl. ¶ 10 (“I believe that my wife has thus far been unable

23 to obtain the police report from the shooting because the East Palo Alto Police Department will only

24 release it to me or my legal representative.”). Furthermore, Mr. Lyon’s wife is of limited assistance

25 because Mr. Lyon is not able to call her by phone either. She cannot afford collect calls, and, as

26 noted above, Mr. Lyon does not have the option of calling her by using a calling card or phone

27 credit. See Lyon Decl. ¶ 9.

28

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United States District Court For the Northern District of California

1

2. Mr. Astorga-Cervantes. Mr. Astorga-Cervantes has been in custody since

2 approximately November 20, 2013. See Astorga-Cervantes Decl. ¶ 4. He is currently in custody at

3 the Rio Cosumnes Correctional Center in Elk Grove. See Astorga-Cervantes Decl. ¶ 4. He does not

4 have an attorney. See Astorga-Cervantes Decl. ¶ 8.

5

Mr. Astorga-Cervantes has had difficulty finding a lawyer to represent him. He does not

6 have enough money in his inmate account to purchase phone credit to call a lawyer. See Astorga-

7 Cervantes Decl. ¶ 7. He is not able to have his family help him find a lawyer because he cannot

8 afford to call his family, and his family cannot afford collect calls. See Astorga-Cervantes Decl. ¶¶

9 8, 11. While detainees are not charged for making calls to nonprofit legal service providers, see

10 Compl. ¶ 41 (discussing the “free call program”), Mr. Astorga-Cervantes has not had success with

11 the free call program – two organizations that he called for free told him that they were not

12 accepting new cases. See Astorga-Cervantes Decl. ¶ 12.

13

Mr. Astorga-Cervantes has also been unable to obtain documents that may assist in his

14 release from custody – e.g., certificates and awards from his involvement with a domestic workers

15 union. See Astorga-Cervantes ¶ 10. As noted above, he has not been able to get his family to help

16 both because he cannot afford the cost of phone calls and because his family cannot afford the cost

17 of phone calls. See Astorga-Cervantes Decl. ¶ 10.

18

3. Mr. Cornelio. Mr. Cornelio has been in custody since approximately September 17,

19 2013. See Cornelio Decl. ¶ 3. He is currently in custody at the West County Detention Facility in

20 Richmond. See Cornelio Decl. ¶ 3. He currently does not have counsel. See Cornelio Decl. ¶ 6

21 (adding that he was previously represented by counsel but counsel withdrew after he could not

22 afford to pay him).

23

Mr. Cornelio has had difficulty finding a lawyer to represent him. Mr. Cornelio does not

24 have the money to pay for phone calls, but, even if he did, there is no way to purchase a calling card

25 or phone credit at the Richmond facility. See Cornelio Decl. ¶ 7. Accordingly, Mr. Cornelio must

26 resort to collect calls. Most free legal service providers did not answer his calls because he was

27 trying to make collect calls. Those who did answer told him that they were not accepting new cases.

28 See Cornelio Decl. ¶ 7.

5

United States District Court For the Northern District of California

1

In addition to the above, Mr. Cornelio has been unable to gather evidence in support of his

2 immigration case because “there is no way for detainees to make international phone calls from [the

3 Richmond facility].” Cornelio Decl. ¶ 10. For Mr. Cornelio, international phone calls are important

4 because he is seeking asylum on the basis that he will be persecuted by gangs if he returns to

5 Guatemala. See Cornelio Decl. ¶ 5.

6

4. Ms. Hernandez-Trujillo. Ms. Hernandez-Trujillo has been in custody since

7 November 14, 2012. See Hernandez-Trujillo Decl. ¶ 5. She is currently in custody at the Yuba

8 County Jail in Marysville and was previously in custody at the Sacramento County Mail Jail. See

9 Hernandez-Trujillo Decl. ¶ 4.

10

While Ms. Hernandez-Trujillo was in custody in the Sacramento County Main Jail, Ms.

11 Hernandez-Trujillo’s ability to find legal representation was severely hampered. She was locked

12 down in her call for 22 hours a day, and free time hours (when phone calls could be made) were

13 inconsistent and often occurred late at night. See Hernandez-Trujillo Decl. ¶ 9. Also, because she

14 could not afford the cost of phone calls, she would have to make collect calls, and law offices did

15 not accept such calls. Nor did government offices, from whom Ms. Hernandez-Trujillo needed

16 information in order to obtain evidence for her immigration case. See Hernandez-Trujillo Decl. ¶

17 11. Ms. Hernandez-Trujillo was finally able to find legal representation (pro bono) after multiple

18 continuances in her immigration case. See Hernandez-Trujillo Decl. ¶ 13.

19

As noted above, Ms. Hernandez-Trujillo is now in custody in the Yuba County Jail in

20 Marysville. She still cannot afford the cost of phone calls. See Hernandez-Trujillo Decl. ¶ 15

21 (stating that the calls at the Yuba County Jail are even more expensive than the calls at the

22 Sacramento County Main Jail). In addition, her attorney cannot afford to accept collect calls on a

23 regular basis. See Hernandez-Trujillo Decl. ¶ 17. When Ms. Hernandez-Trujillo does call her

24 attorney, the call is cut-off if no live person answers. See Hernandez-Trujillo Decl. ¶¶ 16-17. This

25 means that Ms. Hernandez-Trujillo cannot leave voicemail messages. See Hernandez-Trujillo Decl.

26 ¶ 17. Also, when her attorney’s office used to use an automated phone tree, this prevented Ms.

27 Hernandez-Trujillo was prevented from getting in touch with her counsel. Notably, when Ms.

28

6

United States District Court For the Northern District of California

1 Hernandez-Trujillo asked for assistance to deal with this problem, her request was denied. See

2 Hernandez-Trujillo Decl. ¶ 16.

3

In addition to declarations from Plaintiffs themselves, Plaintiffs have submitted two

4 declarations from immigration attorneys that detail their problems with communicating with clients

5 because of telephone access issues at the detention facilities. See generally Lee Decl.; Vincent Decl.

6

II. DISCUSSION

7 A. Legal Standard

8

Plaintiffs seek certification of the following class pursuant to Federal Rule of Civil Procedure

9 23(b)(2): “All current and future immigration detainees who are or will be held by ICE in Contra

10 Costa, Sacramento, and Yuba Counties.” Mot. at 1.

11

Under Rule 23(b)(2), a class action may be maintained if:

12 •

Rule 23(a) is satisfied – i.e., “(1) the class is so numerous that joinder of all members is

13

impracticable; (2) there are questions of law or fact common to the class; (3) the claims or

14

defenses of the representative parties are typical of the claims or defenses of the class; and

15

(4) the representative parties will fairly and adequately protect the interests of the class”; and

16 •

“the party opposing the class has acted or refused to act on grounds that apply generally to

17

the class, so that final injunctive relief or corresponding declaratory relief is appropriate

18

respecting the class as a whole.”

19 Fed. R. Civ. P. 23(a), (b)(2).

20

As indicated aby the above, Rule 23(b)(2) class actions are so-called “injunction” class

21 actions, which stand in contrast to “damages” class actions brought pursuant to Rule 23(b)(3). See

22 Frank v. United Airlines, Inc., 216 F.3d 845, 849 (9th Cir. 2000). Rule 23(b)(2) class actions are

23 treated more liberally than Rule 23(b)(3) class actions to the extent the latter has strict requirements

24 of mandatory notice to the class upon certification as well as an opportunity to opt out. See Fed. R.

25 Civ. P. 23(c)(2). In contrast, in a Rule 23(b)(2) class action, notice may be given but is not required,

26 and there is no requirement that a class member be given an opportunity to exclude himself or

27 herself from the lawsuit. The Court also notes that, Rule 23(b)(2) was adopted precisely “in order to

28 permit the prosecution of civil rights actions.” Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.

7

United States District Court For the Northern District of California

1 1998); see also Cal. for Disability Rights, Inc. v. Cal. DOT, 249 F.R.D. 334, 349 (N.D. Cal. 2008)

2 (Armstrong, J.) (stating that “[t]he Court’s analysis of the commonality requirement of Rule 23(a)

3 necessarily touched on the propriety of certifying the class under Rule 23(b)(2)[;] [a]s noted, this

4 case is precisely the sort of civil rights class action contemplated by Rule 23(b)(2)”). Rule 23(b)(2)

5 only requires that the defendant act or refuse to act on grounds that apply “generally to the class.”

6

Plaintiffs have the burden of demonstrating that they have met the Rule 23(a) and (b)(2)

7 requirements. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011).

8 B. Class Definition

9

Before addressing the Rule 23(a) and (b)(2) requirements, the Court considers first the

10 government’s challenge to the definition of the proposed class – i.e., “[a]ll current and future

11 immigration detainees who are or will be held by ICE in Contra Costa, Sacramento, and Yuba

12 Counties.” Mot. at 1. The government contends in particular that the proposed class definition is

13 overly broad and not precisely defined.1 See Opp’n at 6.

14

The Court rejects the government’s argument. Courts have held that “[a]n identifiable class

15 exists if its members can be ascertained by reference to objective criteria,” Schwartz v. Upper Deck

16 Co., 183 F.R.D. 672, 679 (S.D. Cal. 1999) – i.e., “[t]he order defining the class should avoid

17 subjective standards (e.g., a plaintiff’s state of mind) or terms that depend on resolution of the merits

18 (e.g., persons who were discriminated against).” Manual for Complex Litigation, Fourth § 21.222,

19 at 270. See, e.g., Schwartz, 183 F.R.D. at 679 (stating that “[a] class description is insufficient . . . if

20 membership is contingent on the prospective member’s state of mind”). Here, Plaintiffs’ proposed

21 class definition does not use subjective standards or terms that depend on the resolution of the

22 merits.

23

Furthermore, “[a] class definition is sufficient if the description of the class is definite

24 enough so that it is administratively feasible for the court to ascertain whether an individual is a

25

26

1 According to the Ninth Circuit, the requirements of Rule 23(a) and (b) are designed to

27

“‘designed to protect absentees by blocking unwarranted or overbroad class definitions.’” Narouz v. Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). However, many district courts have

28

considered the issue of whether a class definition is overbroad independent of the requirements of Rule 23(a) and (b).

8

United States District Court For the Northern District of California

1 member.” Rodman v. Safeway, Inc., No. 11-cv-03003-JST, 2014 U.S. Dist. LEXIS 31438, at *53

2 (N.D. Cal. Mar. 10, 2014) (internal quotation marks omitted). Here, it is easily administratively

3 feasible to determine whether a person falls within Plaintiffs’ proposed class.

4

The government protests still that the “proposed class is overly broad [because it is] not

5 limited to those individuals who are or will be ‘held in government custody pending deportation

6 proceedings.’” Opp’n at 5 (quoting complaint; emphasis added). But contrary to what the

7 government suggests, there is no need to add the phase “pending deportation proceedings” to limit

8 the class definition. There is no real dispute that the reason why Plaintiffs and other ICE detainees

9 are in the facilities in the first place is because of the potential for removal. As Plaintiffs argue, the

10 government fails “to explain how or why distinctions in the procedural posture of detainees’

11 immigration cases[2] have any significance for purposes of class certification.” Reply at 4.

12 Furthermore, even if a detainee has gone through the IJ and BIA process, he or she may still have

13 additional avenues for relief (e.g., judicial review). See 8 U.S.C. § 1252.

14

Accordingly, the Court rejects the government’s contention that the proposed class definition

15 is overbroad and turns now to the Rule 23(a) and (b)(2) requirements.3

16 C. Rule 23(a)

17

1. Numerosity: Class So Numerous that Joinder of All Members is Impracticable

18

Plaintiffs argue that the numerosity requirement is easily satisfied because “[t]he Facilities

19 hold a combined total of 500 to 600 immigration detainees on an average day.” Mot. at 9. Plaintiffs

20

21

2 The government notes that “not all ICE detainees who are detained under 8 U.S.C. § 1225(b) or § 1231 in Yuba, Contra Costa, or Sacramento County will necessarily have or have had

22

proceedings before the San Francisco Immigration Court.” Opp’n at 7. Section 1225(b) concerns the inspection of alien applicants for admission to the United States, “such as those apprehended at

23

the border or at a port of entry.” Rodriguez v. Robbins, 715 F.3d 1127, 1132 (9th Cir. 2013). Applicants are screened and, if found inadmissible, shall be removed from the United States unless,

24

e.g., the alien is referred for an interview by an asylum officer. See 28 U.S.C. § 1225(b)(1)(A)-(B). Section 1231 concerns the detention and removal of aliens ordered removed.

25

3 The Court also notes that class definitions of actions maintained under Rule 23(b)(2)

26

generally command less precision than those brought under Rule 23(b)(3). See Manual for Complex Litigation, Fourth § 21.222, at 270 (stating that, “[b]ecause individual class members must receive

27

the best notice practicable and have an opportunity to opt out, and because individual damage claims are likely, Rule 23(b)(3) actions require a class definition that will permit identification of individual

28 class members, while Rule 23(b)(1) or (b)(2) actions may not”).

9

United States District Court For the Northern District of California

1 add that joinder is impracticable not only because there is a large number of class members but also

2 because class members are “transitory” (e.g., they may be transferred to other facilities, they may be

3 removed, or they may be permitted to stay). See Mot. at 9.

4

The Court finds Plaintiffs’ position on numerosity meritorious, particularly in the absence of

5 any challenge by the government.

6

2. Adequacy: Representative Parties Will Fairly and Adequately Protect Interests of the

7

Class

8

To determine whether named plaintiffs will adequately

represent a class, courts must resolve two questions: “(1) do the named

9

plaintiffs and their counsel have any conflicts of interest with other

class members and (2) will the named plaintiffs and their counsel

10

prosecute the action vigorously on behalf of the class?” Adequate

representation depends on, among other factors, an absence of

11

antagonism between representatives and absentees, and a sharing of

interest between representatives and absentees.

12

13 Ellis, 657 F.3d at 985.

14

Here, the government does not question the ability of Plaintiffs’ counsel to adequately

15 represent the proposed class, see Opp’n at 7, and the Court finds that counsel is in fact adequate to

16 represent the proposed class.

17

As for Plaintiffs’ ability to adequately represent the proposed class, the government makes

18 the following arguments: (1) Mr. Cornelio is not an adequate representative because he was removed

19 to Guatemala on February 11, 2014, and he waived any right to appeal the removal order; (2) all

20 four Plaintiffs cannot “adequately represent any ICE detainee who alleges that his or her detention

21 has been prolonged by inadequate telephone access” because none “can evidence any causation

22 between their detention and allegedly inadequate telephone access”; (3) all Plaintiffs except for Ms.

23 Hernandez-Trujillo are not adequate representatives because they never asked to make a “private

24 legal phone call that will not automatically cut off after a certain time period and that is free for any

25 indigent detainee”; and (4) at best, Plaintiffs can only adequately represent persons detained by ICE

26 pursuant to 8 U.S.C. § 1226 – and not, e.g., § 1231 or § 1225(b). Opp’n at 8-10. None of these

27 arguments is compelling.

28 ///

10

United States District Court For the Northern District of California

1

1. Mr. Cornelio’s Removal

2

As noted above, the government argues first that Mr. Cornelio is not an adequate

3 representative because he was removed to Guatemala on February 11, 2014, and he waived any right

4 to appeal the removal order.

5

As a preliminary matter, the Court takes note that, even if the government were right that Mr.

6 Cornelio was not an adequate representative, that still leaves three other Plaintiffs willing to take on

7 the mantle of class representative.

8

However, contrary to what the government argues, Mr. Cornelio is an adequate

9 representative in spite of his removal and waiver of the right to appeal. The government does not

10 dispute that, at the time the lawsuit was filed, Mr. Cornelio did have standing to pursue the instant

11 action. While Mr. Cornelio’s standing may have mooted out his specific claim for relief, that does

12 not automatically mean he can no longer be a class representative for other detainees who still want

13 relief.

14

As Plaintiffs point out, the critical case on point is Gerstein v. Pugh, 420 U.S. 103 (1975).

15 Gerstein, like the instant case, was a class action. The plaintiffs were two individuals who had been

16 charged with crimes by information, instead of indictment, under Florida law. Under Florida law, a

17 person charged by information could be detained for a substantial period of time without getting a

18 preliminary hearing to test probable cause. See id. at 105-06. The plaintiffs argued that they and

19 other putative class members had a constitutional right to a timely judicial hearing on the issue of

20 probable cause.

21

In a footnote, the Supreme Court took into account that the plaintiffs had ultimately been

22 convicted and therefore their pretrial detention had ended. Nevertheless, the Court still proceeded

23 with the case because it

24

belongs . . . to that narrow class of cases in which the termination of a

class representative’s claim does not moot the claims of the unnamed

25

members of the class. Pretrial detention is by nature temporary, and it

is most unlikely that any given individual could have his constitutional

26

claim decided on appeal before he is either released or convicted. The

individual could nonetheless suffer repeated deprivations, and it is

27

certain that other persons similarly situated will be detained under the

allegedly unconstitutional procedures. The claim, in short, is one that

28

is distinctly “capable of repetition, yet evading review.”

11

United States District Court For the Northern District of California

1

At the time the complaint was filed, the named respondents

were members of a class of persons detained without a judicial

2

probable cause determination, but the record does not indicate whether

any of them were still in custody awaiting trial when the District Court

3

certified the class. Such a showing ordinarily would be required to

avoid mootness under Sosna. But this case is a suitable exception to

4

that requirement. The length of pretrial custody cannot be ascertained

at the outset, and it may be ended at any time by release on

5

recognizance, dismissal of the charges, or a guilty plea, as well as by

acquittal or conviction after trial. It is by no means certain that any

6

given individual, named as plaintiff, would be in pretrial custody long

enough for a district judge to certify the class. Moreover, in this case

7

the constant existence of a class of persons suffering the deprivation is

certain. The attorney representing the named respondents is a public

8

defender, and we can safely assume that he has other clients with a

continuing live interest in the case.

9

10 Id. at 111 n.11 (emphasis added).

11

The Supreme Court subsequently upheld Gerstein in County of Riverside v. McLaughlin, 500

12 U.S. 44 (1991). In McLaughlin, the plaintiffs brought a class action similar to that in Gerstein. See

13 id. at 47 (challenging the manner in which the County of Riverside provided probable cause

14 determinations to persons arrested without a warrant – in particular, the delay in providing such

15 determinations). The County challenged the plaintiffs’ standing, arguing that “the main thrust of

16 plaintiffs’ suit is that they are entitled to ‘prompt’ probable cause determinations” and, “[o]nce

17 sufficient time has passed, . . . it is too late for them to receive a prompt hearing and, under Lyons,

18 they cannot show that they are likely to be subjected again to the unconstitutional conduct.” Id. at

19 50-51.

20

The Supreme Court rejected the standing argument, explaining as follows:

21

The County does not dispute that, at the time the second amended

complaint was filed, plaintiffs James, Simon, and Hyde had been

22

arrested without warrants and were being held in custody without

having received a probable cause determination, prompt or otherwise.

23

Plaintiffs alleged in their complaint that they were suffering a direct

and current injury as a result of this detention, and would continue to

24

suffer that injury until they received the probable cause determination

to which they were entitled. Plainly, plaintiffs’ injury was at that

25

moment capable of being redressed through injunctive relief. The

County’s argument that the constitutional violation had already been

26

“completed” relies on a crabbed reading of the complaint. This case is

easily distinguished from Lyons, in which the constitutionally

27

objectionable practice ceased altogether before the plaintiff filed his

complaint.

28

12

United States District Court For the Northern District of California

1

It is true, of course, that the claims of the named plaintiffs have

since been rendered moot; eventually, they either received probable

2

cause determinations or were released. Our cases leave no doubt,

however, that by obtaining class certification, plaintiffs preserved the

3

merits of the controversy for our review. In factually similar cases we

have held that “the termination of a class representative’s claim does

4

not moot the claims of the unnamed members of the class.” That the

class was not certified until after the named plaintiffs’ claims had

5

become moot does not deprive us of jurisdiction. We recognized in

Gerstein that “some claims are so inherently transitory that the trial

6

court will not have even enough time to rule on a motion for class

certification before the proposed representative’s individual interest

7

expires.” In such cases, the “relation back” doctrine is properly

invoked to preserve the merits of the case for judicial resolution.

8

Accordingly, we proceed to the merits.

9 Id. at 51-52 (emphasis added).

10

Finally, in Wade v. Kirkland, 118 F.3d 667 (9th Cir. 1997), the Ninth Circuit followed the

11 principles articulated in Gerstein and McLaughlin. In Wade, the plaintiff brought a class action

12 challenging the working conditions of “chain gang” labor at the county jail where he was then

13 housed. While the plaintiff’s motion for class certification was pending, he was transferred to a

14 different facility. The district court denied the motion to certify as premature – i.e., because the

15 transfer had mooted out the plaintiff’s individuals claims. The question for the Ninth Circuit was

16 whether the plaintiff had standing on appeal to challenge the ruling on the class certification motion.

17 According to the Ninth Circuit, he did.

18

The Supreme Court in Geraghty recognized that even after mootness

of a named plaintiff’s own claim, a plaintiff may continue to have a

19

“‘personal stake’ in obtaining class certification.” The plaintiff in

Geraghty sought to have a denial of certification reversed; Wade

20

seeks a ruling on an outstanding class certification motion; each

“continues vigorously to advocate his right to have a class certified.”

21

As an appellate court, however, “we cannot review [class

22

certification] decisions before they are made.” We therefore remand

for the district court to decide the outstanding certification motion,

23

including whether Wade can continue as class representative or

whether other putative class members should be allowed to intervene.

24

On remand, the district court should decide the class

25

certification motion before proceeding further. We recognize that, in

some cases, it may be appropriate in the interest of judicial economy

26

to resolve a motion for summary judgment or motion to dismiss prior

to ruling on class certification. This is not one of those cases. Wade

27

purported to represent short-term inmates in a county jail, presenting a

classic example of a transitory claim that cries out for a ruling on

28

certification as rapidly as possible.

13

United States District Court For the Northern District of California

1

We note only that the claims have the potential for being

“inherently transitory”; whether the class claims are in fact “inherently

2

transitory” is ultimately a decision for the district court, and we do not

in any way suggest what result that court should reach. Indeed, we

3

could not, as the record at this point is devoid of any evidence of the

average length of detention in the county jail. We write only to clarify

4

that in making this determination, the district court must look at the

claims of the class as a whole, as opposed to Wade’s individual claims

5

for relief.

6

If the district court finds the claims are indeed “inherently

transitory,” then the action qualifies for an exception to mootness even

7

if there is no indication that Wade or other current class members may

again be subject to the acts that gave rise to the claims. This is

8

because there is a constantly changing putative class that will become

subject to these allegedly unconstitutional conditions. Moreover, if

9

transitory, the court could validly certify a class on remand, even

though the named plaintiff’s claims are already moot, since the

10

“relation back” doctrine will relate to Wade’s standing at the outset of

the case in order “to preserve the merits of the case for judicial

11

resolution.”

12

On the other hand, if the district court finds that the class

claims are not sufficiently transitory to qualify for this exception to the

13

mootness doctrine, it should then consider whether putative class

members with live claims should be allowed to intervene.

14

15 Id. at 669-70 (emphasis added).

16

Accordingly, per Gerstein, MacLaughlin, and Wade, the question for the Court is whether

17 Plaintiffs’ class claims are “inherently transitory.” They are. As in Gerstein, the length of detention

18 cannot be ascertained at the outset and may be ended before class certification by various

19 circumstances. It is not certain that any given individual, named as a plaintiff, would stay in

20 detention long enough for a district judge to certify the class, and the constant existence of a class of

21 persons suffering the alleged deprivation is certain. See Gerstein, 420 U.S. at 111 n.11.

22

2. Prolonged Detention Caused by Limited Telephone Access

23

The government argues next that all four Plaintiffs cannot “adequately represent any ICE

24 detainee who alleges that his or her detention has been prolonged by inadequate telephone access”

25 because none “can evidence any causation between their detention and allegedly inadequate

26 telephone access.” Opp’n at 8-9. According to the government, Mr. Lyon has been detained

27 because a statute, 8 U.S.C. § 1226(c), precludes him from seeking release on bond at this time. Mr.

28 Cornelio had been out on bond but that bond was revoked in September 2013 after he was arrested

14

United States District Court For the Northern District of California

1 and incarcerated for driving under the influence of alcohol in July 2013. Mr. Astorga-Cervantes has

2 been granted release on a bond. Finally, Ms. Hernandez-Trujillo has declined to seek release on a

3 bond. See Opp’n at 8-9.

4

The government’s argument lacks merit. First, the key harm asserted here transcends the

5 length of detention. What is centrally at issue is access to counsel and other persons so that

6 Plaintiffs can effectively pursue vindication of their legal rights. Telephone access may affect the

7 likelihood of their ultimate success in avoiding deportation. This interest does not necessarily turn

8 on the length of detention.

9

To the extent part of the harm includes the lengthening of detention because of telephone

10 issues, Plaintiffs have presented evidence of such. According to Plaintiffs, the denial and restriction

11 of telephone access has substantially prolonged their incarceration because e.g., they have been

12 forced to ask for continuances to retain counsel, consult with counsel, or prepare their cases. See,

13 e.g., Hernandez-Trujillo Decl. ¶ 12; Cornelio Decl. ¶ 8. That a plaintiff may or may not be released

14 on bonds does not negate the fact that, whatever the length of their detention, the need for

15 continuances prolongs or did prolong the detention. As to those detainees denied bond in particular,

16 the deficient process in the facilities prolongs their detention. Reply at 9.

17

3. Request to Make Legal Phone Call

18

In its third argument on adequacy, the government contends that all Plaintiffs except for Ms.

19 Hernandez-Trujillo are not adequate representatives because they never asked to make a “private

20 legal phone call that will not automatically cut off after a certain time period and that is free for any

21 indigent detainee.” Opp’n at 9.

22

Similar to above, the Court takes note that, even if the government were right that three of

23 the four Plaintiffs were not adequate representatives, that still leaves Ms. Hernandez-Trujillo willing

24 to take on the mantle of class representative.

25

In any event, the government’s position on inadequacy is problematic. The government

26 argues that “a detainee’s decision not to pursue such options [as identified above] will be a defense

27 in this litigation,” Opp’n at 9, but, even if so, that does not automatically mean there is an apparent

28 conflict of interest between Plaintiffs and other class members or that Plaintiffs will not prosecute

15

United States District Court For the Northern District of California

1 the action vigorously on behalf of the class. See, e.g., Cummings v. Connell, 316 F.3d 886, 896 (9th

2 Cir. 2003) (stating that “this circuit does not favor denial of class certification on the basis of

3 speculative conflicts”); Blackie v. Barrack, 524 F.2d 891, 909 (9th Cir. 1975) (noting that class

4 members might have differing interests at later stages of litigation, but that “potential conflicts” do

5 not present a valid reason for refusing to certify a class; adding that “courts have generally declined

6 to consider conflicts, particularly as they regard damages, sufficient to defeat class action status at

7 the outset unless the conflict is apparent, imminent, and on an issue at the very heart of the suit”);

8 Allied Orthopedic Appliances, Inc. v. Tyco HealthCare Group L.P., 247 F.R.D. 156, 177 (C.D. Cal.

9 2007) (stating that “[c]lass certification will be inappropriate if fundamental conflicts of interest are

10 determined to exist among the proposed class members”; adding that “[a] conflict is ‘fundamental’

11 when it goes to the specific issues in controversy, or where . . . some plaintiffs claim to have been

12 harmed by the same conduct that benefited other members of the class, preventing the named

13 representatives from ‘vigorously prosecut[ing] the interests of the class through qualified counsel’”).

14 The fact that every class representative has not been harmed in the same way as others does not in

15 itself create a conflict precluding adequate representation.

16

The Court notes that, in some ways, the government’s argument here is not one of adequacy,

17 but rather typicality. More specifically, courts have generally held that, where a named plaintiff is

18 subject to a unique defense that threatens to preoccupy him or her, he or she may lack typicality.

19 See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (stating that “a named

20 plaintiff’s motion for class certification should not be granted if ‘there is a danger that absent class

21 members will suffer if their representative is preoccupied with defenses unique to it’”; also

22 indicating that “‘class certification is inappropriate where a putative class representative is subject to

23 unique defenses which threaten to become the focus of the litigation’”). Here, even if there were a

24 defense to a particular plaintiff based on his or her failure to ask to make a phone call, nothing

25 suggests that such a defense would threaten to become such a focus of the litigation that the affected

26 Plaintiff would no longer be adequate representative for the class.

27 ///

28 ///

16

United States District Court For the Northern District of California

1

4. Section 1226 Class

2

Finally, the government asserts that, at best, Plaintiffs can only adequately represent persons

3 detained by ICE pursuant to 8 U.S.C. § 1226 – and not, e.g., § 1231 or § 1225(b). (The government

4 admits that Mr. Cornelio was subject to removal under § 1231 but argues that he is still an

5 inadequate representative because, as discussed above, he has already been removed to Guatemala.

6 See Opp’n at 10.) This argument relates back to the government’s argument above that Plaintiffs’

7 class definition is overbroad because, e.g., it includes § 1231 and § 1225(b) detainees. See note 2,

8 supra.

9

Similar to above, the current argument is not persuasive. While there may be some

10 differences when a detainee is subject to § 1231 or § 1225(b) as opposed to § 1226, post-removal

11 order detention pursuant to 8 U.S.C. § 1226(a) which provides for bond hearing), see Rodriguez v.

12 Hayes, 591 F.3d 1105, 1113-14 (9th Cir. 2010) (noting that “§ 1225(b) provides for discretionary

13 detention of aliens pending a determination of admissibility,” that “§ 1226 provides for both

14 discretion detention generally and mandatory detention for certain narrow categories of aliens

15 pending a determination of their removability,” and that “§ 1231(a) provides for mandatory

16 detention of aliens ordered removed during the 90 day removal period and discretionary detention

17 after the end of the removal period”), the government has failed to identify how this would create a

18 conflict of interest between Plaintiffs and other class members or cause a named Plaintiff to fail to

19 vigorously prosecute.

20

3. Commonality: There Are Questions of Law or Fact Common to the Class

21

“To show commonality, Plaintiffs must demonstrate that there are questions of fact and law

22 that are common to the class.” Ellis, 657 F.3d at 981. “‘[A]ll questions of fact and law need not be

23 common to satisfy [Rule 23(a)],’” but it is not sufficient “to merely allege any common question, for

24 example, ‘Were Plaintiffs passed over for promotion?’ Instead, [Plaintiffs] must pose a question that

25 ‘will produce a common answer to the crucial question why was I disfavored.’” Id.; see also Wal-

26 Mart Stores, Inc. v. Duke, 131 S. Ct. 2541, 2551 (2011) (stating that “[c]ommonality requires the

27 plaintiff to demonstrate that the class members have suffered the same injury”). “What matters to

28 class certification . . . is not the raising of common questions – even in droves – but, rather the

17

United States District Court For the Northern District of California

1 capacity of a classwide proceeding to generate common answers apt to drive the resolution of the

2 litigation.” Id. (internal quotation marks omitted).

3

In its opposition, the government makes two arguments related to commonality: (1) Plaintiffs

4 cannot show widespread actual injury, see Lewis v. Casey, 518 U.S. 343, 348-49 (1996) (“agree[ing]

5 that the success of respondents’ systemic challenge was dependent on their ability to show

6 widespread actual injury, and . . . the court’s failure to identify anything more than isolated instances

7 of actual injury renders its finding of a systemic Bounds violation invalid”); and (2) there is no

8 common or overriding policy that governs the Yuba, Elk Grove and Richmond facilities – rather

9 there are various practices at the three different facilities.

10

As to the first argument, the government asserts that “those detainees within the proposed

11 class who are ineligible to seek relief from removal or who are awaiting removal proceedings cannot

12 [even] evidence the ‘actual injury’ required to contest their conditions of confinement.” Opp’n at

13 11. But this argument misses the point. Even those ineligible for relief from removal may still wish

14 to get the advice of counsel as there may be other avenues for relief. As for those detainees awaiting

15 removal proceedings, that is precisely when there is a need for adequate telephone access to get the

16 assistance of an attorney or others in order to contest removal or, at least, to see whether there is a

17 basis to contest removal. Moreover, this alleged injury is clearly widespread and not “isolated

18 instances” as in Lewis.

19

As for the second argument, Plaintiffs fairly point out that the government has admitted to at

20 least one significant common practice in all of the three facilities. More specifically, in its answer,

21 the government admits that “the telephone systems generally available to detainees at the Yuba,

22 Sacramento and Contra Costa facilities require a live person to answer and accept any call; this

23 feature is deemed necessary to prevent detainees, including criminal inmates not in ICE custody but

24 housed at the same facilities, from calling any crime victims or leaving threatening messages.” Ans.

25 ¶ 43.

26

More fundamentally, the overarching claim is that ICE detainees in these facilities are denied

27 effective access to telephones and that this impedes communications with counsel, family, and

28 others necessary to protect and vindicate their legal rights. The fact that the precise practices among

18

United States District Court For the Northern District of California

1 the three facilities may vary does not negate the application of a constitutional floor equally

2 applicable to all facilities. In this regard, the constitutional standard Plaintiffs seek to impose here is

3 structurally similar to the application of ICE’s National Detention Standards, which the government

4 admits applies to all three facilities. See Compl. ¶ 41; Ans. ¶ 46. As Plaintiffs argue, the nature of

5 the overarching constitutional standard Plaintiffs seek to apply here to various conditions found in

6 particular facilities is no different than cases in which a class-based challenge is brought against

7 systemic prison conditions. See, e.g., Williams v. City of Philadelphia, 270 F.R.D. 208, 222 (E.D.

8 Pa. 2010) (granting Rule 23(b)(2) class certification to claim bought by inmates contesting the

9 conditions of confinement in the Philadelphia Prison System); cf. Walters, 145 F.3d at 1047

10 (certifying a Rule 23(b)(2) class where plaintiffs alleged that forms used by INS on a nationwide

11 basis did not adequately advise them of their rights; noting that, “[w]hile the government correctly

12 observes that numerous individual administrative proceedings may flow from the district court’s

13 decision, it fails to acknowledge that the district court’s decision eliminates the need for individual

14 litigation regarding the constitutionality of INS’s official forms and procedures”).4

15

4. Typicality: Claims or Defenses of Representatives Parties Are Typical of Claims or

16

Defenses of the Class

17

“To demonstrate typicality, Plaintiffs must show that the named parties’ claims are typical of

18 the class. The test of typicality is whether other members have the same or similar injury, whether

19 the action is based on conduct which is not unique to the named plaintiffs, and whether other class

20 members have been injured by the same course of conduct. Typicality refers to the nature of the

21 claim or defense of the class representative, and not to the specific facts from which it arose or the

22 relief sought.” Ellis, 657 F.3d at 984 (internal quotation marks omitted).

23

24

4 The commonality identified above is sufficient to support a class covering all three

25

facilities. However, the Court notes that, even if there were differences among the three facilities (e.g., at the Richmond facility, a detaineee cannot purchase a calling card or phone credit), such that

26

there were significant concerns about commonality, the government has failed to explain why, at the very least, there could not be certification of subclasses. See Staton v. Boeing Co., 327 F.3d 938,

27

956 (9th Cir. 2003) (“conclud[ing] that the district court was within its discretion to find the commonality requirement of Rule 23(a)(2) met in this case” but adding that “[t]he district court in

28

all likelihood could . . . have declined to certify the overall class in favor of certifying discrete subclasses, so as to assure commonality”). No party, however, has argued for subclasses herein.

19

United States District Court For the Northern District of California

1

In its opposition, the government argues that Plaintiffs cannot establish typicality “[f]or the

2 same reasons that Plaintiffs cannot satisfy the adequacy and commonality prerequisites.” Opp’n at

3 13. For the reasons discussed above, the government’s typicality argument also fails.

4 D. Rule 23(b)(2)

5

As noted above, for certification under Rule 23(b)(2), the party seeking certification must

6 show that “the party opposing the class has acted or refused to act on grounds that apply generally to

7 the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting

8 the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). Claims for individualized relief

9 do not satisfy Rule 23(b)(2). See Wal-Mart, 131 S. Ct. at 2557.

10

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

11

that it can be enjoined or declared unlawful only as to all of the class

members or as to none of them.” In other words, Rule 23(b)(2)

12

applies only when a single injunction or declaratory judgment would

provide relief to each members of the class. It does not authorize class

13

certification when each individual class member would be entitled to a

different injunction or declaratory judgment against the defendant.

14

15 Id.

16

In its opposition, the government largely rehashes its commonality argument with respect to

17 the (b)(2) requirement – i.e., “Plaintiffs do not challenge a single policy applying to all facilities, but

18 rather various practices amongst the facilities.” Opp’n at 13-14. But, as indicated above, the

19 government’s characterization is not accurate. Plaintiffs are not asking for any individualized relief

20 for each class member. Rather, they are asking for systemic changes consistent with a single

21 overarching constitutional standard that will be applicable to all class members in all these facilities.

22 That each facility may have to change its current policies in varying ways in order to comply does

23 not negate the singular nature of the injunction sought. As noted above, it is telling that prison

24 condition cases are often certified under Rule 23(b)(2) where a prison policy or procedure is

25 challenged. See Riker v. Gibbons, No. 3:08-CV-00115-LRH-RAM, 2009 U.S. Dist. LEXIS 35449,

26 at *17-18 & n.7 (D. Nev. Mar. 31, 2009) (finding certification appropriate under Rule 23(b)(2)

27 where plaintiffs “challenge[d] [Ely State Prison’s] medical system, which they allege subjects all of

28 them to a significant risk of injury and unnecessary infliction of pain”; adding that “[o]ther courts

20

United States District Court For the Northern District of California

1 have also certified classes under Rule 23(b)(2) when prisoners challenge the constitutionality of

2 prison conditions”); Williams, 270 F.R.D. at 222 (noting that “[n]umerous courts have held that Rule

3 23(b)(2) is an appropriate vehicle in actions challenging prison conditions”). The instant case is, for

4 all practical purposes, materially indistinguishable from such prison condition cases.

5

III. CONCLUSION

6

For the foregoing reasons, the Court grants Plaintiffs’ motion for class certification. The

7 following class is certified pursuant to Rule 23(b)(2): “All current and future immigration detainees

8 who are or will be held by ICE in Contra Costa, Sacramento, and Yuba Counties.”

9

Because a 23(b)(2) class is being certified, notice to the class is not required but may be

10 appropriate depending on the circumstances. See Fed. R. Civ. P. 23(c)(2) (providing that, “[f]or any

11 class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class”). If

12 Plaintiffs believe that notice is appropriate, then they should immediately inform Defendants, and

13 the parties should meet and confer (either in person or by telephone) to determine whether they can

14 reach agreement as to whether notice should be given and, if so, what the terms of that notice should

15 be and how the notice should be distributed to the class.

16

A case management conference (“CMC”) shall be held on May 22, 2014, at 9:00 a.m. The

17 parties shall file a joint CMC statement one week prior to the conference.

18

This order disposes of Docket No. 14.

19

20

IT IS SO ORDERED.

21

22 Dated: April 16, 2014

23

_________________________

EDWARD M. CHEN

24

United States District Judge

25

26

27

28

21

 
 Case3:13-cv-05878-EMC Document40 Filed06/03/14 Page1 of 6

1 ROBERT P. VARIAN (STATE BAR NO. 107459)
ALEXANDER K. TALARIDES (STATE BAR NO. 268068)
2 M. TODD SCOTT (STATE BAR NO. 226885)

3

ALEXIS YEE-GARCIA (STATE BAR NO. 277204) CHRISTINE M. LOUIE (STATE BAR NO. 267929)

4 ORRICK, HERRINGTON & SUTCLIFFE LLP

The Orrick Building, 405 Howard Street
5 San Francisco, California 94105-2669

6

Telephone: (415) Facsimile: (415)

773-5700 773-5759

7 Email: rvarian@orrick.com

8 Attorneys for Plaintiffs 9 [Additional Counsel appear on signature page]

10

UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

12

13 AUDLEY BARRINGTON LYON, JR., et )

14 al.,

) No. 3:13-cv-05878-EMC )

15 Plaintiffs,

) ) STIPULATION AND [PROPOSED] ORDER

16 vs.

) RE NOTICE AND ACCESS TO CLASS

17 U.S. IMMIGRATION & CUSTOMS

) )

18 ENFORCEMENT, et al.,1

)

)

19

Defendants.

)

20

21

22

23

24

25 1

Thomas S. Winkowski, Principal Deputy Assistant Director, ICE, is substituted under

26 Fed. R. Civ. P. 25(d)for former Acting Director, John Sandweg, who was named as a defendant

27 in this action in his official capacity but resigned from this position effective February 21, 2014.

28
STIPULATION RE NOTICE AND ACCESS TO CLASS No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document40 Filed06/03/14 Page2 of 6

1

STIPULATION RE NOTICE AND ACCESS TO CLASS

2

In accordance with the Court’s Order Granting Plaintiffs’ Motion for Class Certification

3 dated April 16, 2014 (Dkt. # 31) (“Class Certification Order”), the Parties have met and 4
conferred regarding the terms and method of providing notice to class members of this litigation
5 6 and access to information about detained class members to facilitate Class Counsel’s

7 communications with and representation of the class. Pursuant to Federal Rule of Civil

8 Procedure 23(c)(2) and (d) and the Class Certification Order and without prejudice to Plaintiffs’

9
right to seek additional measures to facilitate access to and communication with class members,
10
the Parties hereby stipulate as follows:
11

12

1. Defendants will take steps necessary to post, in English and Spanish, the written

13 notice attached as Exhibit A in all housing units of the West County Detention Facility, the Rio

14 Cosumnes Correctional Center, and the Yuba County Jail (collectively “facilities”) that hold
15
class members. In the unlikely event a facility will not agree to post notice, ICE will make
16 17 alternative arrangements to provide notice such as providing notice to the alien prior to the alien
18 being booked into the facility or by providing notice during routine visits by ICE agents.

19

2. Because class members’ identifying information is within Defendants’

20 possession, Defendants will provide “class lists” to Plaintiffs’ counsel on the first business day of 21
each month. The class lists will include the following information about each class member:
22 23 name, alien number, country of citizenship, detention facility, and date booked into facility.

24

3. Because class members are in Defendants’ custody, Defendants will facilitate

25 Class Counsel’s communication with class members by continuing to include the ACLU of
26 Northern California in Defendants’ “free call platform” from the West County Detention 27

28

STIPULATION RE NOTICE AND ACCESS TO CLASS No. 3:13‐cv‐05878‐EMC

-1-

Case3:13-cv-05878-EMC Document40 Filed06/03/14 Page3 of 6

1 Facility, the Rio Cosumnes Correctional Center, and the Yuba County Jail during the course of

2 this litigation.

3

4. Defendants will not seek information from the detention facilities regarding visits

4
between class members and Plaintiffs’ counsel, legal team, or experts. Any information
5

6 Defendants receive inadvertently regarding such contact will not be used by or disclosed to any

7 person, within or outside of Defendants’ agencies, for any purpose. This prohibition on

8 solicitation shall not preclude Defendants from seeking information from the facilities or

9
Plaintiffs through formal discovery requests, subject to the rules of discovery.
10
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
11

12

Respectf

ully submitted,

13 14 Dated: June 3, 2014 15 16 17 18 19 20 21 22 23 24

ORRICK HERRINGTON & SUTCLIFFE LLP
By: ____/s/ Robert P. Varian____________ ROBERT P. VARIAN
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, INC.
By: ____/s/ Julia Harumi Mass__________ JULIA HARUMI MASS JINGNI (JENNY) ZHAO MICHAEL T. RISHER
AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISON PROJECT
By: ____/s/ Carl Takei____________________ CARL TAKEI

25

Attorneys for Plaintiffs

26

27

28

STIPULATION RE NOTICE AND ACCESS TO CLASS No. 3:13‐cv‐05878‐EMC

-2-

Case3:13-cv-05878-EMC Document40 Filed06/03/14 Page4 of 6

1 Dated: June 3, 2014

OFFICE

2

CIVIL

3

4

STUART

5

6

7
ELIZABETH
8

9

10

11

12

13

14

15

DISTRICT COURT SECTION OF IMMIGRATION LITIGATION
DIVISION U.S. DEPARTMENT OF JUSTICE
F. DELERY Assistant Attorney General
COLIN A. KISOR Acting Director
J. STEVENS Assistant Director
By: ____/s/ Jennifer A. Bowen___________ JENNIFER A. BOWEN KATHERINE A. SMITH Trial Attorney P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-3558 Facsimile: (202) 305-7000 Email: jennifer.bowen@usdoj.gov

16

Attorneys

17

for Defendants

18

19 20

21 22

23

24

25

26 27

28

STIPULATION RE NOTICE AND ACCESS TO CLASS No. 3:13‐cv‐05878‐EMC

-3-

Case3:13-cv-05878-EMC Document40 Filed06/03/14 Page5 of 6

1

[PROPOSED] ORDER

2 PURSUANT TO STIPULATION, IT IS SO ORDERED.

3

UNITED S ALIFORNIA

OURT NORTH

4 Dated: June ____4___, 2014 5

6

United

7

THTEAHTOESNODRIASTBRLEICETDWC ARD M. CHEN
States District Court
IT IS SO ORDERED

8

9

Judge Edward M. Chen

10

11 12

ERN DISTRICT OF C

13

14 15

16

17

18

19 20

21 22

23

24

25

26 27

28

STIPULATION RE NOTICE AND ACCESS TO CLASS No. 3:13‐cv‐05878‐EMC

-4-

Case3:13-cv-05878-EMC Document40 Filed06/03/14 Page6 of 6

1

CERTIFICATION OF CONCURRENCE FROM OTHER PARTIES

2

I, Robert P. Varian, am the ECF user whose ID and password are bei ng used to file this

3 Stipulation and Proposed Order Re garding Notice and Access to Class. In com pliance with 4
General Order 45, X.B., I hereby certify that each of the other signatorie s has concurred in the
5 6 filing of this document and has authorized the use of his/her electronic signature.

7
Dated: June 3, 2014
8
9
10

/s/ Robert P. Varian ROBERT P. VARIAN Orrick, Herrington & Sutcliffe LLP The Orrick Building, 405 Howard Street San Francisco, California 94105-2669

11

12

13

14 15

16

17

18

19 20

21 22

23

24

25

26 27

28

STIPULATION RE NOTICE AND ACCESS TO CLASS No. 3:13‐cv‐05878‐EMC

-5-

Case3:13-cv-05878-EMC Document40-1 Filed06/03/14 Page1 of 2
EXHIBIT A

Case3:13-cv-05878-EMC Document40-1 Filed06/03/14 Page2 of 2
Please read this notice. If you are detained by U.S. Immigration and Customs Enforcement, you may have important rights related to the use of the telephones to work on your immigration case.
A federal court has approved a “class action,” which is a lawsuit brought on behalf of a group of people instead of a single person. If you are an immigration detainee in this detention facility, you are part of a class action called Lyon v. Immigration and Customs Enforcement. The lawsuit argues that problems with telephone access harm your ability to fight deportation and violate your rights. The lawsuit seeks to improve telephone access in immigration detention. It does not seek a money judgment.
If you are a member of this class, you do not need to sign up to be part of the lawsuit. You also cannot choose to be left out of the lawsuit. The rights of the class will be determined through the lawsuit.
If you are an immigration detainee and would like to know more about the lawsuit, please contact Julia Harumi Mass by telephone (dial 9160# on the free telephone line) or by mail (label your envelope “Legal Mail” and send it to: ACLU of Northern California, 39 Drumm Street, San Francisco, CA 94111). Please provide the following information:
 Your full name  Your A# (an 8 or 9 digit number written on your immigration documents)  Your country of origin  Your detention facility  The date of your next court hearing  Any difficulties you have experienced with telephone use and any harm to your
immigration case that resulted  Any other information you believe is important

 
 Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 1 of 32

1 ROBERT P. VARIAN (SBN 107459) CHARLES J. HA (pro hac vice)
2 DAVID KEENAN (pro hac vice) JUDY KWAN (SBN 273930)
3 ALEXIS YEE-GARCIA (SBN 277204)
4 MATTHEW R. KUGIZAKI (SBN 286795) ORRICK, HERRINGTON & SUTCLIFFE LLP
5 405 Howard Street San Francisco, CA 94105
6 Telephone: (415) 773-5700
Facsimile: (415) 773-5759 7 Email: rvarian@orrick.com

8 JULIA HARUMI MASS (SBN 189649)

9 MICHAEL T. RISHER (SBN 191627)

MEGAN SALLOMI (SBN 300580) 10 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

11

OF NORTHERN CALIFORNIA 39 Drumm Street

12 San Francisco, CA 94111 Telephone: (415) 621-2493

13 Facsimile: (415) 255-8437

Email: jmass@aclunc.org

14

Attorneys for Plaintiffs

15

[Additional Counsel appear on signature page]

16

17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19

20 AUDLEY BARRINGTON LYON, JR., et. al., Case No.: 13-cv-05878 EMC

21

Plaintiffs,

22

v.

23 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et. al.,
24 Defendants.
25

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
CLASS ACTION

26

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 2 of 32

1

TABLE OF CONTENTS

2

Page

3

INTRODUCTION ......................................................................................................................... 1

4

JURISDICTION ............................................................................................................................ 3

5

VENUE .......................................................................................................................................... 3

INTRADISTRICT ASSIGNMENT............................................................................................... 3 6
PARTIES ....................................................................................................................................... 3

7

ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF.................................................. 6

8

Background on Removal Proceedings ............................................................................... 6

9

Immigration Detention in Northern and Central California .............................................. 8

10

Defendants’ Denial and Restriction of Telephone Access Results in a Dramatic Disparity of Outcomes ....................................................................................................... 9

11

Defendants’ Denial and Restriction of Plaintiffs’ Telephone Access ............................. 10

12

Defendants’ Modifications to Plaintiffs’ Telephone Access in Response to

Litigation.......................................................................................................................... 13

13

Denial of Right to Legal Representation ......................................................................... 16

14

Denial of Right to Gather and Present Evidence ............................................................. 18

15

Prolonged Incarceration ................................................................................................... 18

16

ADDITIONAL ALLEGATIONS RE INDIVIDUAL PLAINTIFFS.......................................... 19

Audley Barrington Lyon, Jr. ........................................................................................... 19 17
José Elizandro Astorga-Cervantes ................................................................................... 20

18

Nancy Neria-Garcia ......................................................................................................... 21

19 CLASS ALLEGATIONS ............................................................................................................ 22

20 DECLARATORY RELIEF ALLEGATIONS ............................................................................ 25

21

FIRST CLAIM FOR RELIEF ..................................................................................................... 25

SECOND CLAIM FOR RELIEF ................................................................................................ 26 22
THIRD CLAIM FOR RELIEF .................................................................................................... 26

23

PRAYER FOR RELIEF .............................................................................................................. 27

24

25

26

27

28

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

- i -

CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 3 of 32

1

INTRODUCTION

2

1. This is a class action for injunctive and declaratory relief necessary to remedy

3 ongoing violations of the constitutional and statutory rights of immigrants held in government

4 custody pending deportation proceedings. Because such proceedings seek to deprive immigrants

5 of the opportunity to live and work in the United States, the United States Constitution and

6 federal statutes afford them substantive and procedural rights, including the right to be

7 represented by counsel, the right to gather and present evidence, and the right to a fair hearing.

8 Those rights (and others) are systematically denied by defendants.

9

2. Plaintiffs Audley Barrington Lyon, Jr., José Elizandro Astorga-Cervantes, and

10 Nancy Neria-Garcia (“Individual Plaintiffs”) bring this class action lawsuit to challenge policies

11 and practices that deny and severely restrict their ability to make telephone calls necessary to

12 consult with or obtain counsel, to gather information and evidence necessary for their cases, and

13 to obtain a fair hearing while in government custody.

14

3. Individual Plaintiffs and the class they seek to represent (collectively “Plaintiffs”)

15 are held in detention facilities under the custody of Defendant Immigration and Customs

16 Enforcement (“ICE”) pending resolution of ICE’s charges that they should be deported or

17 “removed” from the United States. Respondents in immigration proceedings are not entitled to

18 appointed counsel and most in northern and central California are held in remote locations that

19 render in-person visits impractical at best. Telephone access is therefore critical to Plaintiffs’

20 ability to locate, retain, and seek advice from legal counsel. For those who cannot afford an

21 attorney and are not able to retain pro bono counsel, telephone contact with the outside world is

22 essential to gather the evidence and government documents necessary to defending against

23 removal charges, locate witnesses, and do other things necessary to represent themselves in

24 complex legal proceedings. It is also necessary to enable Plaintiffs to exercise their First

25 Amendment rights to petition government agencies to obtain immigration benefits and related

26 documents that may provide relief from removal.

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

1

CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 4 of 32

1

4. However, ICE, and its parent agency, the Department of Homeland Security

2 (“DHS”) have engaged in a common course of conduct that severely restricts Plaintiffs’

3 telephone access in violation of their rights under the United States Constitution and the

4 Immigration and Nationality Act (“the Act”).

5

5. Defendants’ policies, practices, and omissions in denying and restricting

6 telephone access have a dramatic impact on the outcomes of removal proceedings. As a result of

7 Defendants’ conduct, many Plaintiffs who would be eligible to remain in the United States are

8 deported.

9

6. Many Plaintiffs are also unnecessarily detained for months. Such prolonged

10 incarceration is a direct result of the Defendants’ violations of Plaintiffs’ constitutional and

11 statutory rights -- not as punishment for conviction of a crime. Plaintiffs are forced to seek

12 continuances while they struggle to locate, retain and communicate with counsel, to gather

13 evidence to be presented in the removal proceedings, and to obtain documents and immigration

14 benefits that can provide relief from removal. There are even some Plaintiffs who would accept

15 a removal order much earlier in the process if they were able to obtain legal consultation over the

16 telephone -- sparing themselves and the taxpayer the significant costs of detention.

17

7. For these reasons, the Individual Plaintiffs seek to represent a class of all current

18 and future adult immigration detainees who, like the Individual Plaintiffs at the time the original

19 complaint was filed, are or will be held in ICE custody in California immigration detention

20 facilities that house detainees with cases venued in San Francisco, i.e. detainees who are or will

21 be held in ICE custody in Kern County, Contra Costa County, Sacramento County, and Yuba

22 County (the “Class”) and to obtain an order from this Court enjoining the policies, practices, and

23 omissions that are preventing Plaintiffs from realizing their statutory and constitutional rights,

24 including the promise of due process in immigration proceedings.

25

26

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

2

CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 5 of 32

1

JURISDICTION

2

8. This Court has subject-matter jurisdiction over this matter under 28 U.S.C. § 1331

3 (federal question), 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 5 U.S.C. § 706 (waiver

4 of sovereign immunity).

5

VENUE

6

9. Venue is proper in the Northern District of California under 28 U.S.C. §§ 1391(b)

7 and (e) because a substantial part of the events and omissions giving rise to Plaintiffs’ claims

8 occurred, and continues to occur, in this district.

9

INTRADISTRICT ASSIGNMENT

10

10. Assignment to the San Francisco Division of this Court is proper under Local

11 Rule 3-2(d) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims

12 occurred, and continues to occur, in San Francisco County.

13

PARTIES

14

11. At the time that the original complaint was filed, Plaintiff Audley Barrington

15 Lyon, Jr. was in ICE custody at the West County Detention Facility in the city of Richmond,

16 Contra Costa County, California (“Richmond Facility”) and had removal proceedings pending in

17 the San Francisco Immigration Court. On April 17, 2015, Plaintiff Lyon was granted release

18 from custody on bond; his removal proceedings are still pending in the San Francisco

19 Immigration Court. He is seeking a U visa as a victim of and witness to a crime under 8 U.S.C. §

20 1101(a)(15)(U), protection relief under 8 U.S.C. § 1231(b)(3). Defendants’ restrictions on

21 telephone access in immigration detention have harmed and will continue to harm Plaintiff Lyon

22 in the event he is returned to custody by, inter alia, denying or severely restricting his ability to

23 obtain information and documents necessary to support his U visa application.

24

12. At the time that the complaint was filed, Plaintiff José Elizandro Astorga-

25 Cervantes was in ICE custody at the Rio Cosumnes Correction Facility in the city of Elk Grove,

26 Sacramento County, California (“Elk Grove Facility”) and had removal proceedings pending in

27 the San Francisco Immigration Court. On or about February 20, 2014, Plaintiff Astorga-

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

3

CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 6 of 32

1 Cervantes was released from custody on bond. On or about June 12, 2014, ICE re-arrested

2 Plaintiff Astorga-Cervantes and placed him in custody at the Yuba County Jail in the city of

3 Marysville, Yuba County, California (“Yuba Facility”). Plaintiff Astorga-Cervantes was

4 released from ICE custody the following day. His removal proceedings are pending in the San

5 Francisco Immigration Court. He is seeking relief from removal under former § 212(c) of the

6 Immigration and Nationality Act. Defendants’ restrictions on telephone access have harmed and

7 will continue to harm Plaintiff Astorga-Cervantes in the event he is returned to custody by, inter

8 alia, preventing him from contacting attorneys for legal advice or representation and denying or

9 severely restricting his ability to gather information and evidence in support of his release from

10 custody and § 212(c) waiver of inadmissibility.

11

13. Plaintiff Nancy Neria-Garcia is in ICE custody at the Richmond Facility. She has

12 been transferred three times during her incarceration and was previously detained at the Yuba

13 Facility and the Mesa Verde Detention Facility in Bakersfield, Kern County, California

14 (“Bakersfield Facility”). She had removal proceedings in the San Francisco Immigration Court

15 and sought withholding of removal and protection under the Convention Against Torture. The

16 Immigration Judge denied her relief and she appealed her case to the Board of Immigration

17 Appeals (“BIA”). The BIA reversed and remanded her case for further proceedings in the San

18 Francisco Immigration Court, which are currently pending. She also intends to seek release from

19 custody by demonstrating to an immigration judge or ICE that she does not pose a risk of flight

20 or a danger to society. Defendants’ restrictions on telephone access have harmed and will

21 continue to harm Plaintiff Neria-Garcia by, inter alia, denying or severely restricting her ability

22 to consult with counsel and by denying or severely restricting her ability to gather information

23 and evidence in support of her claims for relief from removal.

24

14. Defendant ICE is a federal law enforcement agency within DHS. ICE is

25 responsible for the criminal and civil enforcement of the immigration laws, including the

26 detention, incarceration and removal of immigrants. ICE discharges its responsibility for

27 incarceration of immigrants by: (1) promulgating detention standards to be followed in the

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

4

CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 7 of 32

1 facilities in which immigrants are held pending removal hearings, including with respect to

2 telephone access; and (2) contracting with the government entities and private corporations that

3 operate detention facilities, including the facilities in which all members of the Class are

4 incarcerated. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and

5 oversees the immigration detention system.

6

15. Under the terms of ICE’s contracts with the jails and the private facility in which

7 Plaintiffs are incarcerated, the federal government pays a specified amount of money per

8 immigration detainee per night to house detainees in accordance with ICE’s detention standards.

9

16. ICE’s most recent set of standards purporting to govern conditions of confinement

10 in ICE custody are the 2011 Performance-Based National Detention Standards, available at

11 http://www.ice.gov/detention-standards/2011 (last visited June 4, 2015).

12

17. Defendant Sarah Saldaña is the Director of ICE. As Director, Defendant Saldaña

13 is responsible for ICE’s policies, practices and procedures, including those relating to the

14 detention of immigrants during their removal proceedings.

15

18. Defendant DHS is the arm of the federal government responsible for the

16 enforcement and administration of the immigration laws. The component agencies of DHS

17 include ICE; United States Citizenship and Immigration Services (“CIS”), which administers the

18 legal immigration system and grants immigration benefits; and United States Customs and

19 Border Protection (“CBP”), which apprehends individuals suspected of unauthorized entry at and

20 around the border.

21

19. Defendant Jeh Johnson is the Secretary and highest-ranking member of DHS. As

22 Secretary of DHS, Defendant Johnson is responsible for DHS’s policies, practices, and

23 procedures and exercises authority and oversight over ICE.

24

20. Defendant Timothy Aitken is the Field Office Director for the San Francisco Field

25 Office of ICE. The San Francisco Field Office is responsible for carrying out ICE’s immigration

26 detention and removal operations in northern California, Hawaii, and Guam. As Director,

27

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1 Defendant Aitken oversees the San Francisco Field Office’s functions and implementation of its

2 detention standards, including with respect to telephone access.

3

21. Defendants Saldaña, Johnson, and Aitken are sued in their official capacities

4 only.

5

ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF

6 Background on Removal Proceedings

7

22. Deportation or “removal” proceedings begin when DHS issues a Notice to Appear

8 (“NTA”) charging an immigrant as removable. Removal cases are adjudicated by the

9 immigration courts in the first instance and are reviewed by the BIA. Both the immigration

10 courts and the BIA are part of the Executive Office for Immigration Review within the United

11 States Department of Justice. Decisions of the BIA are reviewable by the United States Courts

12 of Appeals.

13

23. The initial appearance in removal proceedings is the master calendar hearing. At

14 this hearing, the immigration judge advises the respondent of his or her rights with respect to the

15 hearing, asks whether the respondent wishes to fight removal and whether he intends to seek

16 legal advice or representation, and may take pleas on the charges in the NTA. Once the

17 respondent is prepared to proceed with his case, the immigration judge will set the case for an

18 evidentiary hearing on removability, relief from removability, and other issues that determine

19 whether the respondent will be permitted to remain in the United States, or deported. See

20 generally Executive Office for Immigration Review, Immigration Judge Benchbook, available at

21 http://www.justice.gov/eoir/vll/benchbook/ (last visited June 4, 2015).

22

24. An immigrant facing removal proceedings may contest the charges on which ICE

23 and DHS seek removal. For example, a respondent can demonstrate that he is in fact a U.S.

24 citizen, or -- if alleged to be removable because of a criminal offense -- that he was not convicted

25 of the alleged offense, or that the offense is not a removable offense. If the charges of

26 removability are not sustained, the removal proceedings are terminated.

27

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1

25. An immigrant facing removal proceedings may also seek relief from removal.

2 For example, an immigration judge may grant “cancellation of removal” based on certain

3 statutory eligibility requirements and evidence demonstrating compelling reasons for being

4 permitted to remain in the United States. 8 U.S.C. § 1229b. To secure cancellation of removal,

5 an immigrant must prove his worthiness for discretionary relief through evidence such as

6 employment records and letters of support or live testimony from community members. The

7 respondent may also apply for “protection relief,” shorthand for asylum, withholding of removal,

8 and relief under the Convention Against Torture, which are related forms of relief available to

9 immigrants who would face harm if returned to their native countries. All forms of protection

10 relief have different requirements and standards, but generally require presentation of detailed

11 evidence, including affidavits, testimony and documents. See 8 U.S.C. §§ 1158; 1231(b)(3); 8

12 C.F.R §§ 208.16-208.18.

13

26. Other forms of statutory relief from removal are granted by CIS, the component

14 of DHS that administers immigration benefits. For example, immigrants in removal proceedings

15 who have been injured as victims of crime and are able to obtain a “certification” from a law

16 enforcement agency that they assisted in the investigation or prosecution of the crime may obtain

17 a U visa. 8 U.S.C. § 1101(a)(15)(U). The grant of a U visa results in termination of removal

18 proceedings and allows the crime victim to remain in the United States.

19

27. With some exceptions, immigrants held in ICE custody can request a bond

20 redetermination hearing at which an immigration judge reviews ICE’s initial custody

21 determination. At this hearing, which is separate from evidentiary hearings on removability and

22 relief from removability, the immigrant has the right to present evidence to demonstrate that he is

23 neither a danger to the community nor a flight risk. This evidence may include, among other

24 things, the immigrant’s own testimony, testimony from third-party witnesses, and documentary

25 evidence of his good character and community ties.

26

28. In order to seek release on bond, most detained immigrants seek legal

27 representation. If they cannot afford to hire an attorney and are unable to secure pro bono

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1 representation, they need to obtain legal advice and independently gather information and

2 evidence in connection with bond redetermination hearings.

3

29. Of all immigration proceedings completed in fiscal year 2011, 42% involved

4 respondents who were detained during the proceedings. Lenni B. Benson & Russell R. Wheeler,

5 Enhancing Quality and Timeliness in Immigration Removal Adjudication, at 19 (June 7, 2012),

6 available at http://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-

7 Timeliness-in-Immigration-Removal-Adjudication-Final-June-72012.pdf (last visited June 4,

8 2015).

9 Immigration Detention in Northern and Central California

10

30. In addition to obstacles generated by incarceration, English language limitations,

11 and the complexity of the immigration and procedural laws governing removal proceedings and

12 relief from removal, Plaintiffs’ efforts to exercise their rights to be represented by counsel, gather

13 and present evidence, and obtain a fair hearing are restricted by geographic isolation. In many

14 cases telephone communication provides the only avenue through which Plaintiffs can secure

15 and exercise those rights.

16

31. ICE contracts with Yuba County, Sacramento County, and Contra Costa County

17 to hold immigration detainees with cases venued in San Francisco in the Yuba, Elk Grove, and

18 Richmond Facilities, respectively.

19

32. In or around January 23, 2015, ICE contracted with The GEO Group, Inc. to hold

20 immigration detainees with cases venued in San Francisco at the Bakersfield Facility.

21

33. Plaintiffs are geographically isolated from the San Francisco Immigration Court,

22 and from the immigration attorneys who practice removal defense, most of whom are based in or

23 near San Francisco. Of the four detention facilities, only the Richmond Facility is within an

24 hour’s drive from San Francisco. The Yuba and Elk Grove Facilities are several hours away

25 from San Francisco. The Bakersfield Facility, ICE’s newest detention facility housing detainees

26 with cases venued in San Francisco, is located approximately 280 miles, or more than four hours,

27 away from San Francisco.

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1

34. Many Plaintiffs are also geographically isolated from their families and others

2 who might provide assistance in obtaining documents and other evidence necessary to defend

3 against removal or seek relief from deportation.

4

35. The effects of Plaintiffs’ geographical isolation are compounded by the fact that

5 ICE frequently transfers detainees among detention facilities based on the agency’s operational

6 needs. Between 1998 and 2010, 40% of detainees experienced at least one transfer, and 46% of

7 those detainees were transferred two or more times. See Human Rights Watch, A Costly Move:

8 Far and Frequent Transfers Impede Hearings for Immigrant Detainees in the United States, at

9 17 (June 2011), available at

10 http://www.hrw.org/sites/default/files/reports/us0611webwcover_0.pdf (last visited June 4,

11 2015).

12

36. All of the immigration detainees in the Yuba, Elk Grove, Richmond, and

13 Bakersfield Facilities have, have had, or may have proceedings in the San Francisco Immigration

14 Court located at 630 Sansome Street. Most detainees have active removal proceedings in the San

15 Francisco Immigration Court. Other detainees had removal proceedings in the San Francisco

16 Immigration Court, and are deciding whether to appeal to the BIA or are awaiting the outcome of

17 their appeals. Some cases pending on appeal may be remanded for further proceedings at the

18 San Francisco Immigration Court. Some await an agency determination as to whether they will

19 have a hearing in the San Francisco Immigration Court based on reasonable fear of returning to

20 their home countries.

21 Defendants’ Denial and Restriction of Telephone Access Results in a Dramatic Disparity of 22 Outcomes

23

37. Defendants’ denial and restriction of telephone access in these circumstances

24 denies or severely limits Plaintiffs’ statutory and constitutional rights to retain counsel, to

25 communicate with retained counsel, to gather and present evidence, to obtain a fair hearing, and

26 to apply for immigration benefits from CIS in seeking relief from removal, with a dramatic and

27 devastating impact on Plaintiffs.

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1

38. Of all removal proceedings completed in San Francisco in fiscal year 2011, only

2 34% of detained respondents were able to exercise their right to retain counsel, compared to 75%

3 of non-detained respondents. Enhancing Quality and Timeliness, supra ¶ 29 at 127. Of all

4 removal proceedings completed in San Francisco in fiscal year 2011, only 11% of detained

5 respondents had successful outcomes in their cases, compared to 59% of non-detained

6 respondents. Transactional Records Access Clearinghouse, Immigration Court Processing Time

7 by Outcome, available at

8 http://trac.syr.edu/phptools/immigration/court_backlog/court_proctime_outcome.php (last visited

9 June 4, 2015).

10 Defendants’ Denial and Restriction of Plaintiffs’ Telephone Access

11

39. Defendants’ policies, practices, and omissions in denying and restricting

12 telephone access violate Plaintiffs’ statutory and constitutional rights in numerous ways. They

13 also violate ICE’s own detention standards with respect to telephone access, which are both

14 deficient and not adhered to or enforced by Defendants. See 2011 Performance-Based National

15 Detention Standards, Telephone Access, available at http://www.ice.gov/doclib/detention-

16 standards/2011/telephone_access.pdf (last visited June 2, 2015) (“2011 PBNDS”); 2008

17 Performance-Based National Detention Standards, available at

18 http://www.ice.gov/doclib/dro/detention-standards/pdf/telephone_access.pdf (last visited June 2,

19 2015) (“2008 PBNDS”); 2000 National Detention Standards, available at

20 http://www.ice.gov/doclib/dro/detention-standards/pdf/teleacc.pdf (last visited June 2, 2015)

21 (“2000 NDS”).

22

40. Although ICE’s detention standards on telephone access provide that detention

23 facilities must operate a system that permits detained immigrants to make free calls to and leave

24 voicemail messages for nonprofit legal services providers and certain government entities

25 (referred to as the “free call platform”), see 2011 PBNDS at 361-63; 2008 PBNDS at 4-5; and

26 2000 NDS at 2, the free call platform is ineffectual and has little practical impact on the ability of

27

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1 immigrants in ICE custody to obtain counsel, gather evidence, or secure their rights to a fair 2 removal hearing.1

3

41. In general, there are three ways to make a telephone call from immigration

4 detention in the Yuba, Elk Grove, Richmond, and Bakersfield Facilities: A detainee can place a

5 collect call, in which the recipient agrees to accept the charges for the call. A family member or

6 friend can contact the telephone service provider for the detention facility to establish a prepaid

7 account, which funds a detainee’s calls to a specific telephone number. In the Yuba, Elk Grove,

8 and Bakersfield Facilities, a detainee can use his own money to purchase a calling card.

9

42. Plaintiffs who are language minorities or who have disabilities face special

10 difficulties using the phone systems in the facilities. Instructions on how to use the free call

11 platform or other calling systems are generally unavailable in minority languages. ICE and

12 Facility officers routinely ignore or deny requests for assistance from these Plaintiffs, often

13 instructing detainees to obtain advice and assistance from other detainees.

14

43. The telephone systems in the housing units of the detention facilities allow a call

15 to be completed only if a live person answers the telephone and accepts the call (by pressing a

16 number in response to a prompt), even if a prepaid account has been established. If a recorded

17 greeting begins to play, the call is disconnected. Consequently, Plaintiffs cannot leave voicemail

18 messages even to parties who have set up prepaid accounts or on calls Plaintiffs are willing and

19 able to pay for through calling cards. Plaintiffs are also unable to complete calls to offices that

20 use voicemail trees, i.e., automated systems that require selection of options to reach a live

21 person. Three-way calls are not permitted in any of the facilities. Detainees cannot make

22 international calls from the Richmond facility. International calls are prohibitively expensive

23 from the Yuba and Elk Grove facilities.

24

25
26 1 Unless otherwise specified, the remainder of allegations in this section of the complaint are related to the telephone system detainees must use to reach anyone that is not included on the
27 free call platform, i.e., the substantial majority of immigration attorneys; all local, state and federal government offices outside of DHS; and private parties.

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1

44. At the Yuba, Elk Grove, and Richmond facilities, many Plaintiffs spend up to 22

2 hours a day confined to their cells. They are permitted to make telephone calls only during “free

3 time,” which occurs at inconsistent hours and often early in the morning or at night. Thus,

4 Plaintiffs cannot reliably arrange to call people at particular times. When free time occurs outside

5 of business hours, Plaintiffs are unable to reach law offices or any other offices. Cf. 2011

6 PBNDS at 362 (detainees shall be provided “reasonable and equitable access to telephones

7 during established facility ‘waking hours’”).

8

45. At the time the original complaint was filed, Plaintiffs held in the Yuba, Elk

9 Grove, and Richmond facilities were only allowed to use telephones that were located in the

10 common areas of each housing unit (“housing unit phones”). Plaintiffs had absolutely no

11 privacy when making privileged calls to current or prospective attorneys, which are often about

12 sensitive topics. Cf. id. at 364 (facilities shall ensure privacy for legal calls and may do so by

13 installing privacy panels, placing telephones in locations where conversations are not readily

14 overheard, or by providing detainees access to office telephones). Plaintiffs’ ability to locate,

15 retain and communicate with counsel, and to gather and present evidence in their removal

16 proceedings, is further restricted by the fact that telephone calls from the housing unit phones at

17 the Yuba, Elk Grove, and Richmond facilities are unreasonably -- and often prohibitively --

18 expensive. In the Richmond Facility, for example, an intrastate, long-distance call costs $3.00 to

19 connect plus $0.25 per minute, totaling $5.50 for a ten-minute call, making it prohibitively

20 expensive for many members of the class, who are indigent. The phone systems at these

21 facilities regularly malfunction and fail to connect or disconnect mid-call for technical reasons,

22 requiring Plaintiffs to pay a new connection fee to continue their conversations. Moreover, at the

23 time the complaint was filed, calls made from the Yuba and Sacramento facilities automatically

24 disconnected after 15 minutes. Cf. id. at 360 (facilities shall provide access to “reasonably priced

25 telephone services”); id. at 363 (“Indigent detainees are afforded the same telephone access and

26 privileges as other detainees.”).

27

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1

46. Immigrants held in ICE custody are completely unable to receive incoming

2 telephone calls. Thus, attorneys, family members and others who might assist in gathering

3 evidence necessary to defend removal charges or seek relief from removal can contact Plaintiffs 4 only by mail or by in-person visitation.2

5 Defendants’ Modifications to Plaintiffs’ Telephone Access in Response to Litigation

6

47. Around September 2014, approximately nine months after Plaintiffs filed their

7 complaint, Defendants made some limited changes to the Plaintiffs’ telephone access at the

8 Yuba, Elk Grove, and Richmond detention facilities in response to the litigation.

9

48. In response to this litigation, Defendants adjusted the telephone systems at Yuba

10 and Elk Grove so that Plaintiffs’ calls automatically disconnect after 20 minutes instead of 15

11 minutes. Plaintiffs at those facilities are still required to pay a new connection fee after their call

12 is automatically disconnected due to the time limit.

13

49. Also in response to this litigation, Defendants began permitting some Plaintiffs

14 held at the Yuba and Richmond facilities to make free, unmonitored telephone calls in support of

15 their immigration cases from a private or a semi-private room. In addition, officials at Yuba and

16 Richmond also began accepting messages from attorneys wishing to speak with Plaintiffs at

17 those facilities.

18

50. In the Richmond Facility, there is one free, unmonitored telephone in a closed

19 room available to detainees in each housing unit. Access to this telephone is limited based on

20 particular deputy practices, and generally is available only during free time hours. The telephone

21 can be used only to place calls to attorneys. There are often more detainees who want to use this

22 telephone than there is time for each person to make a call and detainees must limit the time of

23 their calls or wait another day to try to get access to the telephone.

24

51. In the Yuba Facility there are two free, unmonitored telephones in a closed room.

25 Detainees can submit a written request to use these telephones. After submitting their requests,

26

2 The Elk Grove Facility permits incoming messages via an online system, but the system

27 cannot be used for confidential communications because all messages are reviewed by jail staff

or recorded.

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1 detainees wait several days and sometimes two or more weeks to be informed it is their turn to

2 use one of these telephones. Detainees are not given notice before a telephone is made available

3 to them, and they are therefore unable to make advance arrangements for their intended call

4 recipients to be available to take their calls. Detainees often have to share the room with another

5 person and therefore the telephones do not offer privacy. These telephones can be used only to

6 place calls to attorneys and they have an outgoing message informing the recipient of the call

7 that it is being made from a detention facility. Calls from these telephones do not connect unless

8 the recipient affirmatively accepts the call.

9

52. Officials at the Yuba and Richmond Facilities also began accepting messages

10 verbally and through e-mail, respectively, from attorneys wishing to speak with Plaintiffs at

11 those facilities. The Facilities’ practices and procedures for accepting and delivering such

12 messages are uncertain and inconsistent.

13

53. In March 2015, Defendants began transferring many Plaintiffs held at the Yuba,

14 Elk Grove, and Richmond Facilities to a new detention facility in Kern County, California (the

15 Bakersfield Facility). Plaintiffs are informed and believe and thereon allege that Defendants

16 have also begun to house new detainees whose cases are venued in San Francisco in the

17 Bakersfield Facility.

18

54. The basic technical features of the telephones available in the housing units at the

19 Bakersfield Facility are identical to the Yuba, Elk Grove, and Richmond Facilities, as alleged in

20 paragraphs 40-43, supra. For example, Plaintiffs at the Bakersfield Facility calling from the

21 housing unit telephones are unable to leave voicemail messages or penetrate voicemail trees and,

22 in order for the call to connect, a live person must answer and accept the call.

23

55. Like Plaintiffs at Yuba, Elk Grove, and Richmond, Plaintiffs at the Bakersfield

24 Facility are required to pay for all outgoing calls from the housing unit telephones. Other than

25 the free call platform, there is no free calling option for indigent Plaintiffs who need to make

26 calls from the housing units in support of their immigration cases.

27

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1

56. The housing unit telephones in the Bakersfield Facility are located in open areas

2 of 100-bed dormitories, allowing no privacy for calls made from those telephones. All calls

3 from the housing unit phones are monitored and recorded.

4

57. The Bakersfield Facility has four rooms with free, unmonitored telephones.

5 Pursuant to a written policy that is attached to the First Supplemental Complaint as Exhibit “1,”

6 detainees can request to use the room only to call attorneys. Plaintiffs are only permitted to use

7 the private telephones if Bakersfield Facility staff and the telephone service provider approve the

8 attorney as “a legal representative.”

9

58. The telephone rooms in the Bakersfield Facility are not soundproof and calls are

10 within earshot of an officer at the Facility, so calls made from those rooms are not confidential.

11 Similar to the private phone rooms at the Yuba and Richmond Facilities, Plaintiffs’ requests to

12 make free legal calls from the attorney rooms are frequently ignored or denied. Plaintiffs may

13 wait a week or longer for a response to their requests to use an unmonitored telephone. The

14 rooms in which these telephones are located at the Bakersfield Facility are also designated for

15 attorney visitation. Plaintiffs are informed and believe and thereon allege that at least two of the

16 four rooms that hold these unmonitored telephones will be used during business hours for

17 videoconference hearings in Immigration Court and will therefore be unavailable to detainees for

18 unmonitored telephone use. Plaintiffs are informed and believe and thereon allege that the

19 telephones available in the Bakersfield Facility will be inadequate to meet the needs of detainees

20 for direct, private calls to seek legal advice and representation, to contact witnesses and

21 government agencies, and to gather evidence and information necessary for Plaintiffs’

22 immigration cases and affirmative applications for relief.

23

59. The changes Defendants have made in response to litigation fail to address many

24 of Plaintiffs’ concerns in this action and are insufficient to fully support Plaintiffs’ rights.

25 Defendants maintain the changes were not necessary to effectuate Plaintiffs’ rights as alleged in

26 this case. The limited improvements to telephone access since the filing of this litigation are

27

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1 subject to change at Defendants’ discretion; they are not embodied in any contract modifications

2 or amendments to ICE detention standards.

3

60. The need for private telephones is even clearer at the Bakersfield Facility than in

4 the Richmond, Yuba, and Elk Grove Facilities because it is a greater distance from the San

5 Francisco Immigration Court and there are few immigration attorneys nearby. It has been and

6 continues to be ICE’s practice to transport detainees from the Richmond, Yuba, and Elk Grove

7 Facilities to meet with pro bono counsel upon request of counsel. However, ICE has announced

8 to representatives of the immigration bar in San Francisco that such accommodations will not be

9 made for detainees in the Bakersfield Facility and their pro bono counsel.

10 Denial of Right to Legal Representation
11 61. The capacity of nonprofit legal services providers in northern and central
12 California to provide representation for detained immigrants is very limited. The bulk of the
13 legal representation for detained immigrants is provided by the private immigration bar,
14 sometimes on a low-fee or sliding scale basis, and occasionally on a pro bono basis. There are
15 no nonprofit legal services providers who represent immigrants in removal proceedings in the
16 region surrounding Bakersfield, California, where ICE located its newest detention facility.
17 62. The restriction and denial of telephone access makes it extremely difficult, and
18 often impossible, for Plaintiffs to secure private counsel from within detention facilities.
19 Plaintiffs often obtain the names and telephone numbers of attorneys who represent detained
20 immigrants through word of mouth in the detention facility, but restrictions on telephone access
21 prevent Plaintiffs from contacting those attorneys. Some Plaintiffs are confined to their cells for
22 most of the day; many lack sufficient funds to make calls. Plaintiffs who are able to access the
23 telephones during business hours and pay for calls are stymied by the inability to leave voicemail
24 messages and navigate voicemail trees, and it is difficult – and sometimes impossible – for
25 attorneys to call or arrange calls with Plaintiffs to follow up on Plaintiffs’ requests for
26 representation.
27

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1

63. Although immigrants held in ICE custody can sometimes locate counsel through

2 family members, many Plaintiffs do not have family members or friends who are able and

3 willing to help them retain counsel. Many Plaintiffs have been transferred far from their

4 communities, sometimes without the knowledge of those who might otherwise attempt to assist

5 in locating counsel. Some Plaintiffs are eligible for immigration relief based on abusive

6 domestic relationships and cannot rely on their partners to facilitate that relief. In addition, when

7 Plaintiffs must funnel their communications with counsel through family members, they are

8 forced to compromise the attorney-client privilege.

9

64. ICE’s free call platform can rarely help Plaintiffs secure counsel. Half of the

10 organizations on the list that are designated as free legal services providers do not accept the

11 cases of immigrants who are detained during their removal proceedings. Most of the

12 organizations that do represent detained immigrants can only accept a low volume of “detained

13 cases” due to resource constraints. Accordingly, one immigration judge in San Francisco

14 routinely advises detained immigrants to look for private counsel because the nonprofit legal

15 services organizations are inundated with requests for assistance.

16

65. When Plaintiffs are able to locate and retain an attorney, the restriction and denial

17 of telephone access also severely undercuts the effectiveness of the representation and Plaintiffs’

18 ability to gather evidence and obtain a fair hearing. Plaintiffs have limited ability to call their

19 attorneys, and their attorneys have limited ability to call or arrange calls with Plaintiffs. Unlike

20 pretrial criminal defendants, who are detained in the county where their public defenders are

21 based, most Plaintiffs are incarcerated hours away from their attorneys. Legal correspondence to

22 and from ICE custody can take a week in each direction. Letters must be inspected to ensure that

23 they are indeed legal mail and do not contain contraband, and incoming letters must be opened in

24 the presence of the detainee to protect the confidentiality of legal mail. Moreover, some

25 Plaintiffs cannot communicate by mail because they cannot read or write in any language.

26

66. In addition, Defendants’ policies and practices restricting and denying telephone

27 access, in light of Plaintiffs’ geographic isolation and the inherent limitations on alternative

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1 means of communication, impose logistical constraints that make it impossible for lawyers who

2 are otherwise willing and able to represent Plaintiffs in connection with removal proceedings to

3 do so, which further restricts and denies Plaintiffs’ right to be represented by counsel.

4 Denial of Right to Gather and Present Evidence

5

67. The denial and restriction of telephone access to immigrants in ICE custody also

6 prevent Plaintiffs, and particularly Plaintiffs who must represent themselves, from obtaining and

7 presenting evidence necessary to obtain a fair hearing. This includes evidence that would entitle

8 them to release from detention, relief from removal, or immigration benefits from CIS that would

9 terminate deportation proceedings. For example, a Plaintiff seeking relief from removal via a U

10 visa may need to contact a police department to obtain a police report, a hospital to obtain

11 medical records, or a district attorney’s office to obtain a law enforcement certification. Plaintiffs

12 seeking bond redetermination from an immigration judge may need to contact character

13 witnesses and obtain documentary evidence of their good works in the community, completion

14 of rehabilitation programs, or the financial hardship their detention imposes on their United

15 States citizen children.

16

68. Defendants’ restriction and denial of telephone access make it difficult or

17 impossible for Plaintiffs to obtain this documentation while held in ICE custody. Even in the

18 rare circumstance when Plaintiffs are theoretically able to make a telephone call during business

19 hours that is not blocked by Defendants’ technological barriers, the prohibitive telephone rates

20 render most Plaintiffs unable to actually complete the call.

21 Prolonged Incarceration

22

69. In addition to denying Plaintiffs’ their statutory and constitutional rights to be

23 represented by counsel, to gather and present evidence, to a fair hearing and to meaningful

24 participation in proceedings in which ICE seeks to remove them from the United States,

25 Defendants’ restriction and denial of telephone access to immigrants held in ICE custody

26 substantially prolongs Plaintiffs’ incarceration pending removal hearings. At master calendar

27 hearings, Plaintiffs are forced to ask the immigration judge for a continuance to retain counsel, to

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1 prepare their cases, or simply to obtain legal advice that permits them to make an informed

2 decision whether to seek relief from deportation or accept a removal order. Some Plaintiffs state

3 during their master calendar hearings that lack of telephone access is the reason they need a

4 continuance. Plaintiffs routinely seek and receive multiple continuances.

5

70. The prolonged periods of incarceration resulting from Defendants’ restriction and

6 denial of telephone access to immigrants held in ICE custody deprives Plaintiffs of their

7 freedom, not as punishment for conviction of a crime, but rather because Defendants’ policies

8 and practices have made it difficult or impossible for Plaintiffs to exercise their statutory and

9 constitutional rights. The fact that Plaintiffs are willing to endure prolonged incarceration in

10 their efforts to obtain those rights underscores the egregiousness of the violations alleged herein.

11

ADDITIONAL ALLEGATIONS RE INDIVIDUAL PLAINTIFFS

12 Audley Barrington Lyon, Jr.

13

71. Plaintiff Audley Barrington Lyon, Jr. is a 35-year-old man currently on

14 conditional release from ICE custody. At the time the original complaint was filed and Plaintiffs

15 moved for class certification in this matter, Mr. Lyon was detained in the Richmond Facility. He

16 entered the United States as a lawful permanent resident when he was approximately ten years

17 old.

18

72. Mr. Lyon seeks relief from removal in the form of a U visa, as the victim of a

19 shooting who cooperated with the East Palo Alto Police Department in connection with the

20 crime. He is also seeking protection relief under 8 U.S.C. § 1231(b)(3).

21

73. Mr. Lyon cannot afford to retain an immigration attorney. After more than two

22 months in immigration custody at the Richmond Facility, Mr. Lyon was able to retain pro bono

23 counsel, Eleni Wolfe-Roubatis of Centro Legal de la Raza.

24

74. Due to Defendants’ denial of telephone access to immigration detainees, Mr.

25 Lyon was unable to call the East Palo Alto Police Department to obtain a police report and the

26 law enforcement certification required for his U visa application. Because the Richmond Facility

27 does not permit detainees to purchase calling cards or phone credit, Mr. Lyon’s only option was

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

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1 to place a collect call to the police department. Government agencies, however, generally do not

2 accept collect calls.

3

75. Until Mr. Lyon retained pro bono counsel, he relied on his wife to assist him with

4 his U visa application. However, Mr. Lyon’s wife earns limited income and could not afford to

5 accept collect calls or establish a prepaid account to accept calls from Mr. Lyon. Instead, Mr.

6 Lyon and his wife communicated with one another regarding his U visa application by mail.

7

76. Mr. Lyon’s wife attempted to obtain a police report on his behalf, but was

8 informed that the police department would only release the report to Mr. Lyon or his legal

9 representative.

10

77. It was only after retaining counsel that Mr. Lyon was able to secure the

11 documents required to seek relief from removal.

12

78. Defendants’ restrictions on telephone access severely obstructed Mr. Lyon’s

13 attempts to apply for a U visa and to seek advice and pro bono representation.

14 José Elizandro Astorga-Cervantes

15

79. Plaintiff José Elizandro Astorga-Cervantes is a 53-year-old man currently on

16 conditional release from ICE custody. At the time the original complaint was filed and Plaintiffs

17 moved for class certification in this matter, Mr. Astorga-Cervantes was detained in the Elk Grove

18 Facility. He has lived in the United States since he was a child and became a lawful permanent

19 resident of the United States in 1977.

20

80. While Mr. Astorga-Cervantes was detained at the Elk Grove Facility, he sought

21 release from custody by demonstrating to an immigration judge or ICE that he does not pose a

22 risk of flight or a danger to society.

23

81. Mr. Astorga-Cervantes intends to apply for relief from removal under former

24 section 212(c) of the Immigration and Nationality Act, a form of discretionary relief similar to

25 cancellation of removal. Release from custody and 212(c) relief both require letters or testimony

26 from family and community members who can attest to Mr. Astorga-Cervantes’s character and

27 community ties.

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

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1

82. Due to Defendants’ telephone access policies and practices, Mr. Astorga-

2 Cervantes was almost completely unable to speak to his family members and community

3 contacts in connection with his efforts to secure release from custody and immigration relief for

4 more than a month. Mr. Astorga-Cervantes did not have sufficient funds in his inmate account to

5 purchase phone credit.

6

83. Mr. Astorga-Cervantes was also unable to complete a collect call to his home for

7 more than a month. As Mr. Astorga-Cervantes was the primary income earner in his household,

8 his family faced severe financial strain and could not afford to pay for expensive telephone calls

9 from detention.

10

84. Defendants’ restrictions on telephone access severely obstructed Mr. Astorga-

11 Cervantes’s attempts to prepare for his bond hearing, apply for a U visa, and seek legal advice

12 and representation.

13 Nancy Neria-Garcia

14

85. Plaintiff Nancy Neria-Garcia is a 26-year-old woman currently in ICE custody in

15 the Richmond Facility. She first came to the United States in November 2010.

16

86. Ms. Neria-Garcia is seeking withholding of removal and protection under the

17 Convention Against Torture, based on abuse and fear of abuse and torture by her ex-partner if

18 she is returned to Mexico.

19

87. Ms. Neria-Garcia entered ICE custody on or about June 26, 2014. She was

20 detained at the Yuba Facility from June 26, 2014 until March 26, 2015, when she was transferred

21 to the Bakersfield Facility. She remained in custody at the Bakersfield Facility until June 3,

22 2015, when she was transferred to the Richmond Facility, where she is currently in custody.

23

88. Defendants’ denial and restriction of telephone access has severely undercut Ms.

24 Neria-Garcia’s statutory and constitutional right to be represented by counsel and to gather and

25 present evidence or witnesses for her immigration case. While she was in the Yuba Facility, she

26 often lacked sufficient funds to call her attorney and others in support of her immigration case. In

27 one of the housing units where Ms. Neria-Garcia was detained at the Yuba Facility, she was

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

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1 locked down in her cell for 23 hours a day with no access to the telephone. Even when she was

2 able to access the telephones and pay for calls, the limited functionality of the telephones and the

3 lack of privacy for housing unit telephones made confidential attorney-client communications

4 impossible. The semi-private telephone room that was added to the Yuba Facility during Ms.

5 Neria-Garcia’s detention there was also insufficient. Ms. Neria-Garcia did not receive a response

6 -- much less a telephone call -- to many of her requests to use the semi-private room.

7

89. While in the Bakersfield Facility, Ms. Neria-Garcia was unable to use the

8 telephone to communicate confidentially with her attorney regarding sensitive matters in her

9 immigration case. Given the lack of adequate telephone access, Ms. Neria-Garcia resorts to

10 writing letters or waiting for in-person visits with her attorney, which, because of the

11 geographical distance from the detention facilities, are rare.

12

CLASS ALLEGATIONS

13

90. The Individual Plaintiffs bring this action on behalf of themselves and all others

14 similarly situated under Rule 23 of the Federal Rules of Civil Procedure. They propose the

15 following Class:

16 All current and future adult immigration detainees who are or will be held by ICE
17 in Contra Costa County, Kern County, Sacramento County, or Yuba County.
18

19

91. Defendants have engaged in a common course of conduct that has denied

20 constitutional and statutory rights on a classwide basis, including by promulgating,

21 implementing, maintaining and enforcing the policies and practices that deny and restrict

22 Plaintiffs’ telephone access at the Bakersfield, Richmond, Elk Grove and Yuba Facilities, and by

23 failing to take actions necessary to allow Plaintiffs to consult with or obtain representation by

24 counsel, to gather and present evidence, to petition government agencies to obtain immigration

25 benefits and documents necessary to seek relief from removal, and to obtain a fair hearing.

26

92. Plaintiffs seek injunctive and declaratory relief only, on grounds that apply

27 broadly to the Class as a whole.

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

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1

93. Members of the Class are so numerous that joinder is impracticable. Plaintiffs are

2 informed and believe, and on that basis allege, that the Bakersfield, Richmond, Elk Grove, and

3 Yuba Facilities hold a combined total of between 600 and 700 immigration detainees on an

4 average day.

5

94. Joinder is also impracticable because membership in the Class is fluid, as

6 immigration detainees are frequently released from custody, transferred to other regions of the

7 country, or removed from the United States. The Class includes individuals who will be

8 subjected to Defendants’ policies, practices, and omissions in the future and therefore cannot be

9 joined.

10

95. There are numerous questions of law and fact common to the Class, which

11 predominate over any individual questions, including:

12

(a) the extent to which Defendants’ policies, practices and omissions denying

13

and restricting telephone access interfere with Plaintiffs’ ability to consult with and retain

14

counsel; communicate effectively with counsel; and gather information and evidence in

15

support of their claims, defenses, and applications for relief;

16

(b) whether Defendants’ policies, practices and omissions in denying and

17

restricting telephone access violate Plaintiffs’ right to be represented by counsel under the

18

Fifth Amendment Due Process Clause, and the Act and its implementing regulations;

19

(c) whether Defendants’ policies, practices and omissions in denying and

20

restricting telephone violate Plaintiffs’ right to a fair hearing, and to gather and present

21

evidence, under the due process clause of the Fifth Amendment and the Act and its

22

implementing regulations;

23

(d) whether Defendants’ policies, practices and omissions in denying and

24

restricting telephone access violate the First Amendment’s Petition Clause by denying

25

and restricting the ability of Class members to obtain information, documents, and

26

immigration benefits that can provide relief from removal; and

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

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1

(e) whether Defendants’ policies, practices and omissions violate the

2

detention standards promulgated by ICE with respect to telephone access.

3

96. The Individual Plaintiffs are members of the Class or were previously certified as

4 Class Representatives, and are or will be, in the event they are returned to custody, subjected to

5 telephone access policies and practices that deny, violate and impair the constitutional and

6 statutory rights of the Class as a whole.

7

97. The Individual Plaintiffs will fairly and adequately represent the interests of the

8 class. Fed. R. Civ. P. 23(a)(4). They seek relief identical to the relief sought by all Class

9 members and have no interests adverse to other members of the Class. Plaintiffs are represented

10 by pro bono counsel who are experienced in federal class action and civil rights litigation, and

11 will adequately represent the interests of the class.

12

98. A class action is superior to all other available methods for adjudicating this

13 controversy, and is manageable, because:

14

(a) Defendants are acting and refusing to act on grounds generally applicable

15

to the Class;

16

(b) many Class members are unaware of their legal rights, and are unable to

17

obtain individual counsel due to the conduct alleged herein;

18

(c) prosecution of individual actions would be impossible because individual

19

Class members would not remain in ICE custody pending removal proceedings long

20

enough to prosecute such actions to a conclusion;

21

(d) even if it were possible, prosecution of separate actions by individual

22

Class members would be inefficient, create a risk of conflicting or inconsistent

23

adjudications, and might, as a practical matter, be dispositive of the interests of individual

24

members of the Class;

25

(e) by virtue of Defendants’ roles in contracting with the facilities in which

26

Class members are held in ICE custody, in promulgating, implementing, enforcing, and

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

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1

in failing to promulgate, implement and enforce, detention standards relating to telephone

2

access for Class members; and

3

(f) the injunctive and declaratory relief sought herein will enable Defendants to

4

formulate and implement measures necessary to address and remedy the constitutional

5

and statutory violations resulting from denial and restriction of telephone access, without

6

undue intrusion on legitimate governmental interests.

7

DECLARATORY RELIEF ALLEGATIONS

8

99. An actual and substantial controversy exists between Plaintiffs and Defendants as

9 to their respective legal rights and duties with respect to Defendants’ policies, practices and

10 omissions in denying and restricting telephone access to the Class. Plaintiffs contend that

11 Defendants’ policies, practices and omissions alleged herein violate their constitutional and

12 statutory rights as alleged in the foregoing paragraphs. Defendants deny that their policies,

13 practices and omissions violate Plaintiffs’ constitutional and statutory rights, and intend to

14 continue such conduct.

15

FIRST CLAIM FOR RELIEF

16

Right to Representation of Counsel

17

(Fifth Amendment Due Process Clause; 8 U.S.C. §§ 1362; 1229a(b)(4)(A))

18

100. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this

19 reference.

20

101. The due process clause of the Fifth Amendment guarantees Plaintiffs the right to

21 representation of counsel of their choice, at no expense to the government.

22

102. Plaintiffs also have a statutory right to representation of counsel at no expense to

23 the government under the Act. 8 U.S.C. §§ 1362; 1229a(b)(4)(A).

24

103. Defendants have violated Plaintiffs’ right to representation of counsel by denying

25 and severely restricting Plaintiffs’ ability to make telephone calls to locate, consult with, and

26 retain counsel, and Plaintiffs’ ability to communicate with retained counsel.

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

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1

104. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of

2 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any

3 further injury.

4

SECOND CLAIM FOR RELIEF

5

Right to a Full and Fair Hearing

6

(Fifth Amendment Due Process Clause; 8 U.S.C. § 1229a(b)(4)(B))

7

105. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this

8 reference.

9

106. The due process clause of the Fifth Amendment guarantees Plaintiffs the right to a

10 full and fair hearing of their removal cases, including a reasonable opportunity to gather and

11 present evidence.

12

107. Plaintiffs also have a statutory right to gather and present evidence in connection

13 with their removal proceedings under the Act. 8 U.S.C. § 1229a(b)(4)(B).

14

108. Defendants have violated Plaintiffs’ right to a full and fair hearing by denying and

15 severely restricting Plaintiffs’ ability to make telephone calls to gather information and obtain

16 evidence in support of their immigration cases.

17

109. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of

18 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any

19 further injury.

20

THIRD CLAIM FOR RELIEF

21

Right to Petition the Government for Redress of Grievances

22

(First Amendment Petition Clause)

23

110. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this

24 reference.

25

111. The First Amendment guarantees Plaintiffs the right to petition the government

26 for redress of grievances, including the right to petition a federal agency for immigration benefits

27 that, if granted, would result in termination of their removal proceedings.

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

26

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1

112. Defendants have violated Plaintiffs’ right to petition the government by denying

2 and severely restricting the telephone access necessary to seek legal representation and obtain

3 documents and evidence in support of their applications for immigration benefits.

4

113. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of

5 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any

6 further injury.

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiffs respectfully request that the Court:

9

1. Issue an order certifying this action to proceed as a class action pursuant to Rule

10 23 of the Federal Rules of Civil Procedure.

11

2. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal

12 Rules of Civil Procedure.

13

3. Issue a judgment declaring that Defendants’ policies, practices, acts, and

14 omissions described herein violate Plaintiffs’ rights under the United States Constitution and the

15 Immigration and Nationality Act.

16

4. Enjoin Defendants, their subordinates, agents, employees, and all others acting in

17 concert with them from subjecting Plaintiffs to the unlawful conditions described herein, and

18 issue an injunction sufficient to remedy the violations of Plaintiffs’ constitutional and statutory

19 rights, including:

20

a. An order that Defendants afford sufficient time during business hours to complete

21

legal calls, and establish a process by which Plaintiffs can make legal calls outside

22

of free time;

23

b. An order that Defendants establish an adequate process by which immigration

24

attorneys can schedule legal calls with Plaintiffs;

25

c. An order that Defendants make reasonable accommodations for Plaintiffs who are

26

indigent and cannot afford to make legal calls, including international calls;

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

27

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1

d. An order that Defendants afford Plaintiffs the ability to make private,

2

unmonitored, unrecorded calls with attorneys, without being overheard by other

3

detainees or staff;

4

e. An order that Defendants afford Plaintiffs the ability to penetrate automated

5

telephone voicemail trees to make legal calls;

6

f. An order that Defendants afford Plaintiffs the opportunity to leave voicemail

7

messages when making legal calls;

8

g. An order that Defendants provide adequate notice to Plaintiffs of the

9

communication options available to them; and

10

h. An order that Defendants provide accommodations for non-English proficient

11

Plaintiffs, illiterate Plaintiffs, and Plaintiffs with disabilities that impact their

12

access to legal calls.

13

5. Grant Plaintiffs their reasonable attorney fees and costs pursuant to the Equal

14 Access to Justice Act, 28 U.S.C. § 2412, and any other applicable law.

15

6. Grant such other relief as the Court deems just and proper.

16 Dated: August 27, 2015
17 18 19 20 21 22 23 24

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
By: /s/ Megan Sallomi __________ MEGAN SALLOMI (SBN 300580) JULIA HARUMI MASS (SBN 189649) MICHAEL T. RISHER (SBN 191627) 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Email: jmass@aclunc.org

25

26

27

FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

28

CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 99 Filed 08/27/15 Page 31 of 32

1

ORRICK, HERRINGTON & SUTCLIFFE LLP

ROBERT P. VARIAN (SBN 107459)

2

CHARLES J. HA (WA Bar No. 34430 (pro hac vice))

3

DAVID KEENAN (WA Bar No. 41359 (pro hac vice))

JUDY KWAN (SBN 273930)

4

ALEXIS YEE-GARCIA (SBN 277204)

MATTHEW R. KUGIZAKI (SBN 286795)

5

ORRICK, HERRINGTON & SUTCLIFFE, LLP

405 Howard Street

6

San Francisco, CA 94105

7

Telephone: (415) 773-5700

Facsimile: (415) 773-5759

8

Email: rvarian@orrick.com

9

AMERICAN CIVIL LIBERTIES UNION

10

NATIONAL PRISON PROJECT CARL TAKEI (SBN 256229)

11

915 15th Street, N.W., 7th Floor

Washington, DC 20005

12

Telephone: (202) 393-4930

Facsimile: (202) 393-4931

13

Email: ctakei@aclu.org

14

Attorneys for Plaintiffs

15

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FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on August 27, 2015, a true and correct copy of the foregoing FIRST

3 SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF was

4 served with the Clerk of the Court by using the CM/ECF system, which provided an electronic

5 notice and electronic link of the same to all attorneys of record through the Court’s CM/ECF

6 system.

7 8 Dated: August 27, 2015 9

By:

/s/ Megan Sallomi

MEGAN SALLOMI

10

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12

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16

17

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FIRST SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE AND

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30

CASE NO.: 13-CV-05878 EMC

 
 Case 3:13-cv-05878-EMC Document 262 Filed 06/13/16 Page 1 of 22

1 ROBERT P. VARIAN (SBN 107459)

CHARLES J. HA (pro hac vice) 2 ALEXIS YEE-GARCIA (SBN 277204)

3

ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street

4 San Francisco, CA 94105 Telephone: (415) 773-5700

5 Facsimile: (415) 773-5759

Email: rvarian@orrick.com 6

JULIA HARUMI MASS (SBN 189649) 7 ANGELICA SALCEDA (SBN 296152)

8 CHRISTINE P. SUN (SBN 218701) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

9 OF NORTHERN CALIFORNIA
39 Drumm Street 10 San Francisco, CA 94111

11

Telephone: (415) 621-2493 Facsimile: (415) 255-8437

12 Email: jmass@aclunc.org

13 [Additional Counsel appear on the following page]

14

15 UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

17

AUDLEY BARRINGTON LYON, JR., et al., Case No.: 13-cv-05878-EMC 18 on behalf of themselves and all others similarly

19 situated,

20

Plaintiffs,

v. 21

22

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

UNOPPOSED NOTICE OF MOTION AND MOTION FOR (1) PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (2) ORDER DIRECTING NOTICE TO THE CLASS AND (3) ORDER SCHEDULING A FAIRNESS HEARING

23 Defendants.

24

25

26

27

28

UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

CASE NO. 13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 262 Filed 06/13/16 Page 2 of 22

1 AMERICAN CIVIL LIBERTIES UNION
NATIONAL PRISON PROJECT 2 CARL TAKEI (SBN 256229)
3 915 15th Street N.W., 7th Floor Washington, DC 20005
4 Telephone: (202) 393-4930 Facsimile: (202) 393-4931
5 Email: ctakei@aclu.org

6 VAN DER HOUT, BRIGAGLIANO, & NIGHTINGALE, LLP
7 MARC VAN DER HOUT (SBN 80778) MEGAN SALLOMI (SBN 300580)
8 180 Sutter Street, Suite 500
San Francisco, CA 94104 9 Telephone: (415) 981-3000
10 Facsimile: (415) 981-3003 Email: msal@vblaw.com
11 Attorneys for Plaintiffs
12

13

14

15

16

17

18

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UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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CASE NO. 13-CV-05878-EMC

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1

NOTICE OF MOTION

2

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE THAT on June 30, 2016 at 1:30 p.m., or as soon thereafter as

4 counsel may be heard in the courtroom of the Honorable Edward M. Chen in the San Francisco

5 District Court Northern District of California, 450 Golden Gate Avenue, Courtroom 5 – 17th

6 Floor, Plaintiffs will, and hereby do, move under Federal Rules of Civil Procedure 23 for

7 preliminary approval of the settlement reached between Plaintiffs and Defendants. This motion is

8 based upon this Notice, the Memorandum of Points and Authorities and supporting declarations

9 and exhibits filed and served herewith, the pleadings and papers on file in this action, and upon

10 such argument and evidence as may be presented at any hearing on this motion. Defendants do

11 not oppose this motion.

12 STATEMENT OF RELIEF SOUGHT
13 Through this motion, Plaintiffs request an order:
14 (1) Granting preliminary approval of the settlement reached between Plaintiffs and
15 Defendants, attached as Exhibit 1 to the Declaration of Julia Harumi Mass, as fair,
16 reasonable, and adequate;
17 (2) Granting approval of the proposed notice to the Class and directing provision of
18 notice to the Class;
19 (3) Scheduling a Fairness Hearing to consider final approval of the settlement.
20

21

STATEMENT OF ISSUES TO BE DECIDED – LOCAL RULE 7-4(a)(3)

22

1. Should the settlement agreement between Plaintiffs and Defendants be granted

23 preliminary approval?

24

2. Should the Notice of Proposed Settlement (Exhibit B to the Agreement) be

25 provided to the Class as provided for in Section VII.A of the Agreement?

26

3. Should the Court schedule a final approval and fairness hearing, and for what

27 date?

28

UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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CASE NO. 13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 262 Filed 06/13/16 Page 4 of 22

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Plaintiffs Audley Barrington Lyon, Jr., Nancy Neria-Garcia, and José Astorga-Cervantes,

4 on behalf of themselves and the certified class (“Class”) of “all current and future adult

5 immigration detainees who are or will be held by ICE in Contra Costa County, Kern County,

6 Sacramento County, or Yuba County,” and Defendants U.S. Immigration and Customs

7 Enforcement (“ICE”), et al. have reached a settlement of the claims in this action (“Settlement”).

8 See Declaration of Julia Harumi Mass in support of Motion for Preliminary Approval (“Mass

9 Decl.”), Exhibit 1 (“Agreement”). Through this unopposed motion, Plaintiffs seek preliminary

10 approval of the Settlement and an order directing notice to the Class and scheduling a Fairness

11 Hearing, as required by Federal Rule of Civil Procedure 23(e).

12

Plaintiffs’ complaint sought declaratory and injunctive relief on behalf of the Class,

13 asserting that the telephone access in the immigration detention facilities in which Class Members

14 were held was insufficient to satisfy constitutional and statutory requirements with respect to their

15 immigration cases and requests for release from detention. The proposed Settlement, obtained

16 after extensive arms-length negotiations, provides substantial relief to the Class by obligating ICE

17 to substantially expand access to free and direct calling and to private calling options at the four

18 facilities where Plaintiffs Class Members are held. For the reasons described below, named

19 Plaintiffs and Class Counsel wholeheartedly recommend this Settlement as in the best interests of

20 the class and request preliminary approval.

21 II. FACTUAL AND PROCEDURAL BACKGROUND

22

The Court is well acquainted with the facts and legal claims at issue in this case, and they

23 will not be repeated in detail here. See Summary Judgment Order (Dkt. 167) at 3-16. Plaintiffs

24 contend that the Class—individuals in immigration detention in certain California counties—are

25 denied the access to telephones they need to fairly defend against removal charges, seek relief or

26 protection from removal, and seek release from detention.1 Plaintiffs alleged that severe

27 1 Class Members are housed in the West County Detention Facility (“Contra Costa”) in Contra
28 Costa County, the Yuba County Jail (“Yuba”), Rio Cosumnes Correctional Center (“RCCC”) in

UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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1 restrictions on access to the telephones denied the Class due process guaranteed by the Fifth

2 Amendment, the right to petition the government for redress of grievances guaranteed by the First

3 Amendment, and their statutory rights to counsel and to present evidence in removal proceedings.

4 See 8 U.S.C. § 1229a(b)(4)(A-B).

5

The parties have vigorously litigated this action for nearly two and a half years. See

6 Complaint (Dkt. 1) (filed December 19, 2013). The Court originally certified a class on April 16,

7 2014, of immigration detainees held by ICE in Contra Costa, Sacramento, and Yuba Counties.

8 See Order Granting Motion for Class Certification (Dkt. 31) When Defendants contracted with a

9 new detention facility in Kern County and began to transfer detainees from the existing three

10 counties into this new facility, Plaintiffs successfully moved to supplement their complaint and

11 amend the class definition to include immigrants detained in Kern County. See Order Granting

12 Plaintiffs’ Motion to Supplement the Complaint and Amend the Class Definition (Dkt. 98).

13

The Parties have engaged in extensive and thorough fact and expert witness discovery.

14 Mass Decl. ¶ 5. From July 2014 to November 2015, Plaintiffs’ counsel took the depositions of 19

15 individuals, including local and headquarters-level ICE officials, administrators at the detention

16 facilities, and telephone service providers.2 Plaintiffs served four sets of document requests, 25

17 interrogatories, and 235 requests for admissions on Defendants, and conducted a Rule 34

18 inspection of relevant areas of the Facilities. Id. Plaintiffs served document subpoenas on third

19 party Facility witnesses and telephone service providers. Plaintiffs’ counsel also responded to

20 Defendants’ requests for admissions, requests for production of documents, and interrogatories

21 directed to the named Plaintiffs and to Defendants’ document subpoenas served on two of

22 Plaintiffs’ three expert witnesses. Plaintiffs defended the depositions of the named Plaintiffs,

23 several class member and attorney fact witnesses, and two expert witnesses. Id. Plaintiffs also

24 served written discovery on Defendants’ original expert witness and deposed and served written

25 Sacramento County, and Mesa Verde Detention Facility (“Mesa Verde”) in Kern County
26 (collectively, “Facilities”).

27

2 Plaintiffs also deposed their own witness, J.H., to preserve his testimony for trial on March 23, 2016.

28

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1 discovery on Defendants’ substitute expert witness. Id.

2

Throughout the litigation, Plaintiffs engaged in regular communications with Class

3 Members to identify potential witnesses for trial and to track changes to telephone access for

4 Class Members during the course of litigation. Mass Decl. ¶ 6. Class counsel maintains a free

5 phone line from the detention facilities for Class Members and regularly communicated with

6 Class Members by phone, mail, and in-person visits. Id. On several occasions, counsel made day-

7 long visits to the Facilities to interview Class Members. During these interviews, counsel

8 investigated the level of telephone access provided, its impact on class members’ claims, and

9 what would facilitate class members’ access to counsel and ability to gather evidence and petition

10 the government. Id. Through this investigation Plaintiffs’ counsel identified 30 class member

11 witnesses and 13 immigration attorney witnesses. Counsel also identified and retained three

12 expert witnesses. Mass Decl. ¶¶ 6-8.

13

Following extensive fact and expert discovery, the parties briefed and argued cross-

14 motions for summary judgment and the Court issued a decision on March 18, 2016, granting

15 Defendants’ motion for summary judgment in part, denying it in part, and denying Plaintiffs’

16 motion. (Dkt. 167). On March 22, 2016, Plaintiffs requested leave to file a motion for

17 reconsideration of one aspect of the Court’s Order on Summary Judgment, namely the Court’s

18 application of Turner v. Safley, 82 U.S. 78 (1987), to Plaintiffs’ due process claims. (Dkt. 175).

19 The motion was later denied without prejudice in light of this settlement. (Dkt. 260).

20

On June 17, 2014, the parties engaged in the first of a series of settlement conferences

21 before Magistrate Judge Donna M. Ryu. Civil Conference Minute Order (Dkt. 43). During this

22 first round of settlement talks, the parties agreed to stay discovery from August 2014 to

23 October 2014 to allow them to focus exclusively on settlement discussions. Joint Case

24 Management Statement (Dkt. 72). The parties jointly conducted in-person visits to the detention

25 facilities with Judge Ryu and counsel for both parties, and Plaintiffs’ counsel separately

26 conducted three days of interviews with class members on their telephone access needs and

27 positions on settlement. Mass Decl. ¶ 4. This effort further informed Plaintiffs’ counsel of the

28

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1 alternatives that were needed to effectuate the asserted rights of the Class, as well as alternatives

2 that would be inadequate or problematic for members of the Class. Id. Although the first round of

3 settlement talks stalled in February 2015, the parties again attempted to resolve the case in the

4 weeks before trial was set to begin. Mass Decl. ¶¶ 4, 9. This effort included an in-person

5 settlement conference with Judge Ryu on May 2, 2016, and several telephonic conferences with

6 Defendants’ counsel and Judges Ryu and Beeler between May 2 and May 16. One week before

7 trial, the parties reached a detailed agreement in principle that provides substantial relief to the

8 Class. The parties then added further detail to the agreement in principle and signed the final

9 Agreement submitted as Exhibit 1 to the Declaration of Julia Harumi Mass in support of this

10 Motion. Mass Decl. ¶ 9, 10.

11 III. SUMMARY OF SETTLEMENT TERMS

12

The Settlement resolves all claims that Plaintiffs asserted on behalf of the Class. There

13 are no differences between the class represented in the Settlement and the class certified by this

14 Court for litigation purposes (Dkt. 31, 98).

15

In return for Plaintiffs’ release of claims, the Settlement provides substantially increased

16 telephone access for members of the Class by requiring that ICE modify its contracts with the

17 four Facilities to retain certain existing communication options in the Facilities—such as Phone

18 Rooms created after this action was filed—and to institute a number of critical changes. Those

19 critical changes include expanding free calling from Housing Unit Phones and Phone Rooms,

20 eliminating technical barriers for certain calls, adding privacy protections for calls made inside

21 housing units, appointing facilitators at each Facility to coordinate legal calls from enclosed

22 Phone Rooms in a timely manner. The Settlement also requires ICE to ensure the delivery of

23 legal messages in a timely manner, and to make additional accommodations to facilitate legal

24 calls for indigent detainees and language minorities. The Settlement includes significant

25 monitoring and enforcement provisions and has a term of five years.

26

27

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1

A. Telephone Access to Be Provided to Class Members.

2

1. Improvements to the Housing Unit Phones.

3

Plaintiffs alleged that the Housing Unit Phones are inadequate because (1) calls from the

4 three county Facilities (Contra Costa, Sacramento, and Yuba) are unreasonably and prohibitively

5 expensive; (2) at all Facilities, the telephones are located in common areas of the housing unit

6 where conversations can easily be overheard by other detainees, facility staff, and (at the county

7 facilities) prisoners in criminal justice custody; (3) at all Facilities, calls require “positive

8 acceptance” from the recipient, which automatically blocks any attempts to leave voicemails or

9 dial extensions; (4) at Yuba and RCCC, calls automatically cut off after 15 minutes (extended to

10 20 minutes after the case was filed); and (5) in all Contra Costa housing units and some housing

11 units at other Facilities, class members are prevented from using the telephones except during

12 limited out-of-cell time and cannot reliably access the telephones during business hours. See

13 Complaint (Dkt. 1) at ¶¶ 41-47; Supplemental Complaint (Dkt. 99) at ¶¶ 49-52.

14

The Settlement addresses each of these limitations. First, the three county facilities will

15 use technology from their existing telephone contractors to add free, unmonitored speed-dial

16 numbers with no “positive acceptance” requirement for government agencies (such as police,

17 public defenders, and state and federal courts), rehabilitation centers, and attorneys who provide

18 at least some pro bono representation and agree to be added. Agreement § III.A.1. At Mesa

19 Verde, the same numbers will be added to a database to ensure that calls to those numbers are

20 unmonitored and do not require positive acceptance.3 Agreement, § III.A.2. In addition, at all

21 four facilities, attorneys who do not provide pro bono services can request to be added to a

22 database of paid but unmonitored numbers without a positive acceptance requirement, thus

23 allowing Class Members to have unmonitored calls with and navigate automated answering

24 systems to leave voicemail messages for attorneys. Agreement, § III.A.2.

25 3 The Settlement also requires ICE to make these calls free to the caller and call recipient if

26

technically feasible to do so, but in any event phone rates at Mesa Verde are much lower than at the county facilities and Mesa Verde does not charge per-connection fees, which makes the cost

27

of calls a much smaller barrier. The Settlement further requires ICE to ensure accommodations in the form of phone credit or extra phone room time to indigent members of the class.

28

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1

In response to Plaintiffs’ privacy concerns, Defendants will install enclosed phone booths

2 in the housing units that prevent others from overhearing class members’ legal calls. Agreement,

3 § III.C.

4

In response to Plaintiffs’ concerns about physical access, Housing Unit Phones will be

5 made available to Class Members during facility waking hours at all times other than count and

6 lockdown. Agreement, § III.D. In particular, the Settlement specifies that “free time” restrictions

7 at Contra Costa cannot defeat Class Member access to telephones. Agreement, § I.W. Class

8 Members that are physically restricted from accessing the Housing Unit Phones (such as

9 individuals in segregation) shall receive access to a phone booth within two waking hours of

10 making the request.4 Agreement, § D.2. Automatic cut-offs for calls from Yuba and RCCC will

11 be extended to forty minutes and automatic cut-offs for calls on ICE’s Pro Bono Platform will be

12 extended to 60 minutes in all Facilities. Agreement, § III.B.

13

2. Improvements to the Private Phone Rooms.

14

In their Complaint, Plaintiffs alleged that there was no way to make a private telephone

15 call in the Facilities. See Complaint (Dkt. 1) at ¶¶ 2, 52. After Plaintiffs filed this action,

16 Defendants made certain rooms at Yuba, Contra Costa, and the newly-opened Mesa Verde

17 available for class members to make free, purportedly direct calls for their immigration cases.

18 See Supplemental Complaint, (Dkt. 99) at ¶¶ 49-51, 57-58. Plaintiffs alleged in response,

19 however, that no Phone Room existed at RCCC, Class Members experienced unreasonably long

20 delays in obtaining access to the Phone Rooms that existed, access to Phone Rooms was limited

21 to attorney calls only, and the Yuba Phone Room lacked privacy and required positive

22 acceptance, among other concerns. Id. Plaintiffs further contended Defendants had not

23 committed to continue providing access to Phone Rooms and could cease providing the Phone

24 Rooms access at any time.

25

Under the Settlement, all the Facilities, including RCCC, will provide a Phone Room or

26 4 For Class Members in disciplinary segregation where telephone access restrictions are imposed

27

as discipline, this provision applies only to personal and family emergencies, legal calls, and other calls based on compelling need. Agreement, § III.D.3.

28

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1 equivalent private space for legal calls, including non-attorney calls to gather evidence or contact

2 friends or family assisting with the Class Member’s immigration case when the Housing Room

3 Phones have not sufficed. Agreement, §§ II.O, III.E.1. Phone Room calls will not automatically

4 cut off and will not require positive acceptance. Id. Calls will be scheduled for thirty minutes,

5 but longer calls will be accommodated upon request. Agreement, § III.E.6. Each Facility will

6 have a facilitator whose primary responsibility is responding to requests for legal calls, including

7 requests by attorneys to schedule calls in the Facility Phone Room. Agreement, § III.G. The

8 Facilities will grant Phone Room requests within 24 hours, unless a longer delay is justified by

9 extraordinary circumstances. Agreement, § III.E.5. Although calls from the Phone Room are

10 expected to remain free, if demand overwhelms availability, ICE may charge non-indigent class

11 members a nominal fee to use the Phone Room and may impose time limits of no shorter than

12 twenty minutes based on demonstrated need in individual circumstances. Agreement, § III.E.6.

13

3. Messaging and Three-Way Calling.

14

Plaintiffs’ claims also highlighted the difficulties that attorneys and others face in

15 contacting Class Members at the Facilities, due to the combination of the phone systems’ inherent

16 inability to accept incoming calls and Plaintiffs’ allegations that the Facilities’ messaging systems

17 are unavailable or unreliable. Plaintiffs emphasized how this impacts Class Members’ ability to

18 represent themselves or communicate with counsel. See Supplemental Complaint (Dkt. 99) at ¶

19 52. The Settlement ensures that, at a minimum, messages related to a Class Member’s legal case

20 will be delivered within 24 hours and emergency messages will be delivered as soon as possible,

21 but in no case more than six waking hours after receipt. Agreement § III.F.

22

Plaintiffs also raised concerns that restrictions on three-way calling prevent Class

23 Members from being able to accommodate an interpreter or to facilitate a conference call between

24 a Class Member’s attorney and witness or family member. These issues will also be addressed

25 under the Settlement. Upon request based on a stated need, ICE shall facilitate three-way calls in

26 the Facility where the Class Member is housed or at the nearest ICE field office if the Facility

27 cannot accommodate three-way calling. Settlement Agreement § III.J.

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1

4. Notice to Class Members of Telephone Access Options; International

2

Calls and Language Accommodations.

3

Plaintiffs alleged existing telephone systems were confusing and Facilities and ICE failed

4 to effectively notify Class Members of options to request legal calls. See Pls.’ Mot. for Summary

5 Adjudication (Dkt. 120) at 17. This problem is heightened for Class Members who cannot read

6 English or Spanish. Id. at 18.

7

The Settlement uses multiple means to improve the instructions for all Class Members and

8 make them more accessible to language minorities. Under the Settlement, Defendants will post

9 detailed instructions for all Class Member telephone access options in English and Spanish.

10 Agreement, § K.2. They will also post a notice in the 10 written languages most commonly used

11 in the San Francisco Immigration Court directing Class Members to ask for interpretation of the

12 instructions if needed. Agreement, § L.2. Additionally, Plaintiffs’ counsel have agreed to produce

13 a video that complies with the Americans with Disabilities Act to orient class members to

14 telephone access and messaging options. The Facilities shall show this video regularly, such that

15 any newly arrived Class Member will have an opportunity to view the video within one week.

16 Agreement, § K.3.

17

The Settlement also improves access for international calls and calls to non-English

18 speakers. Any Class Member who is unable to complete a call from the Housing Unit Phone due

19 to the call recipient’s difficulty understanding the recorded prompts from these phones will have

20 access to a Facility Phone Room. Agreement, § L.3. ICE will accommodate Class Member

21 requests for international calls for legal purposes within 72 hours, or sooner if such calls can be

22 made from the Facility Phone Rooms. Agreement, § I.4. Although such calls will generally take

23 place during Facility waking hours, ICE also agrees to make reasonable accommodations outside

24 of those hours based on compelling need, such as when the Facility waking hours do not

25 correspond to business hours in the country a Class Member seeks to call. Agreement, § I.5.

26

B. Monitoring and Enforcement Provisions.

27

The Settlement contains provisions to ensure the implementation of its provisions and

28

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1 requires Defendants to regularly produce records and other documents, as well as permit class

2 counsel to access the facilities to interview class members annually. The Court will retain

3 jurisdiction for enforcement purposes for five years from the Effective Date of the Settlement.

4 See Agreement § VI. Before invoking the Court’s jurisdiction, the parties must participate in

5 informal and formal dispute resolution. Id. Should the parties need to invoke the Court’s

6 jurisdiction to enforce the Settlement, the parties agreed that the Court in such a proceeding will

7 have the power to award such relief and issue such judgments as the Court deems proper and

8 appropriate. Id.

9

Additionally, the Settlement strengthens ICE’s internal monitoring of compliance with its

10 detention standards, by requiring that the agency’s weekly and annual auditing documents be

11 amended to specifically evaluate compliance with the ICE detention standards that address the

12 issues in this case. See Settlement Agreement § IV.D.

13

C. Attorneys’ Fees and Costs.

14

As part of the Settlement, Defendants have agreed to pay $405,000 to Class Counsel to

15 settle claims for attorneys’ fees and costs incurred in this litigation. See Agreement § XI.

16 Plaintiffs plan to submit a fee motion that will be available to Class Members upon the Court’s

17 preliminary approval of the Settlement, as required by Federal Rule of Civil Procedure 23(h)(1).

18 As will be set forth in detail in that fee motion, the negotiated amount is much smaller than

19 Plaintiffs’ lodestar and is well-justified given the work that went into this case and the results

20 achieved through the Settlement. See Mass Decl. ¶ 12.

21

D. Release of Claims.

22

Under the Settlement, Plaintiffs have agreed to release the claims that were brought in this

23 case. See Settlement Agreement §§ I.G (defining “Settled Claims”). The release of the Settled

24 Claims includes any claims for declaratory or injunctive relief that could have been brought on

25 behalf of the class prior to the effective date of the settlement. See Settlement Agreement § II.A

26 (defining release). Claims that accrue after the Settlement term are unaffected. See id.

27 Additionally, any individual damages claims and arguments made in immigration proceedings by

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1 anyone other than the Named Plaintiffs are unaffected. Settlement Agreement § II.B (clarifying

2 certain categories of likely concern to Class Members). See also Pride v. Correa, 719 F.3d 1130,

3 1137-38 (9th Cir. 2013) (independent claim for denial of medical treatment may proceed because

4 it is not duplicative of or addressed conclusively by class action settlement governing entire

5 system of prison medical care); Krug v. Lutz, 329 F.3d 692, 696 (9th Cir. 2003) (individual

6 defendant is permitted to litigate an “independent constitutional action” where the “specific

7 issues” raised “[have] not already been addressed conclusively by the decrees”); Crawford v. Bell,

8 599 F.2d 890, 893 (9th Cir. 1979) (where individual complaint overlapped with class action, it

9 was error for district court to dismiss “those allegations of [the individual] complaint which go

10 beyond the allegations and relief prayed for in [the class action]”).

11 IV. THE SETTLEMENT SHOULD BE PRELIMINARILY APPROVED

12

“If the proposal would bind class members, the court may approve it only after a hearing

13 and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). The Ninth

14 Circuit sets forth the following factors for a district court to consider in determining the fairness

15 of a settlement at final approval: (1) the strength of the plaintiffs’ case; (2) the risk, expense,

16 complexity and likely duration of further litigation; (3) the risk of maintaining class action status

17 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed

18 and the stage of the proceedings; (6) the experience and views of the counsel; (7) the presence of

19 a governmental participant; and (8) the reaction of the class members to the proposed settlement.

20 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); accord Churchill Vill., L.L.C. v.

21 Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). These factors are “non-exclusive” and the court

22 should only consider the relevant factors. Churchill Vill., 361 F.3d at 576 n.7.

23

At preliminary approval, the court “need only ‘determine whether the proposed settlement

24 is within the range of possible approval.’” Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 479

25 (E.D. Cal. 2010) (quoting Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982)). Further,

26 “strong judicial policy . . . favors settlements.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268,

27 1276 (9th Cir. 1992). Here, the proposed Settlement provides substantial relief addressing all of

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1 the telephone access limitations that Plaintiffs complained of in this action and meets the relevant

2 Hanlon factors. The Settlement, therefore, is “fundamentally fair, adequate, and reasonable” and

3 well within the range of possible approval. Hanlon, 150 F.3d 1011 at 1026; Fed. R. Civ. P. 23(e).

4

A. The Relief Provided by the Settlement Compared to the Strength of Plaintiffs’

5

Case and Risk of Further Litigation.

6

Although Plaintiffs believe they would likely have prevailed at trial on their procedural

7 due process and First Amendment claims, Plaintiffs move for preliminary approval of the

8 Settlement because it provides near-total relief to Class Members and allows the parties to avoid

9 the expense and inherent uncertainties of trial.

10

The strength of Plaintiffs’ claims derives from the weighty interests all individuals have in

11 avoiding deportation and remaining free from prolonged detention. To support these claims,

12 Plaintiffs planned to present evidence of the significant obstacles to communication Class

13 Members experience in the Facilities and the impact of those obstacles on Class Members’ ability

14 to communicate with counsel and gather evidence for their immigration cases and requests for

15 release on bond. Plaintiffs contend that many of the telephone access restrictions in the Facilities

16 violated Defendants’ own detention standards and were prepared to present expert witness

17 testimony that the restrictions were not justified by legitimate government interests. See, Mass

18 Decl. ¶ 13; see also, e.g., Summary Judgment Order (Dkt. 167) at 38-40; Exh. A to Berg Decl.

19 (Dkt. 120-23) at 17-29.5

20

Notwithstanding Plaintiffs’ confidence in the facts, ongoing uncertainty about the

21 governing legal standard added an element of risk. This case advances a novel legal theory. In

22 its Order on the parties’ Motions for Summary Judgment, the Court ruled that both the Mathews

23 v. Eldridge balancing test and the Turner v. Safley test governed Plaintiffs’ due process claims.

24

25

5 In agreeing not to oppose the instant motion, Defendants represented to Plaintiffs that they disagree with Plaintiffs’ analysis of the strength of their claims and of their evidentiary

26

presentation at trial, and in particular were confident in their likelihood of successfully defending against Plaintiffs’ claims at trial or on appeal. Nevertheless, Defendants recognize the cost of a

27

lengthy trial, that the outcome of trial is uncertain, and the benefits of resolution through settlement.

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1 Although the Court granted Plaintiffs’ request for leave to file a motion for reconsideration of this

2 aspect of the Order, that motion remained pending before trial and limited guidance available

3 from existing case law made it difficult to predict how the Court would ultimately weigh any

4 credible governmental interests against the Plaintiffs’ interests.6

5

Further, the Settlement provides substantial relief addressing all of the telephone access

6 limitations that Plaintiffs challenged. Mass Decl. ¶ 14. Plaintiffs maintain that before this action

7 was filed, Class Members were held in three county jails with no private calling options. The

8 Housing Unit Phones are expensive, have technical obstacles that largely prevent Class Members

9 from dialing extensions or leaving voicemail messages, and, with few exceptions, paid calls from

10 those phones are recorded and monitored. Contra Costa’s Housing Unit Phones allow only

11 collect calls, preventing Class Member from calling anyone—including government agencies—

12 who did not accept the charges for calls identified as coming from “inmates” of the Facility.7 See

13 Complaint (Dkt. 1) at ¶¶ 41-47. Under the Settlement, the expanded capabilities for Housing Unit

14 Phones will provide Plaintiffs with greatly improved access to free, private, and direct calling to

15 attorneys and to government agencies and courts that were previously out of reach. In addition,

16 the access to free, direct, unmonitored calls from Phone Rooms that were installed after Plaintiffs

17 filed this action will be significantly expanded to include legal calls to non-attorneys—a vitally

18 important capability. Requests to use the rooms will be granted within firmly-established time

19 frames, the technical deficiencies of the Phone Room in Yuba will be eliminated, and privacy for

20 Phone Room calls will be assured at Yuba and RCCC, which have not provided truly private calls

21 even through the alternatives that were added in response to this litigation. Thus, although

22 6 Plaintiffs’ motion for reconsideration argued that the Mathews test is flexible enough to consider

23 the “function involved” and give any deference owed detention center administrators in the

application of its balancing test. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See

24 Plaintiffs’ Motion to Reconsider (Dkt. 175). The motion was never resolved on the merits, but

rather was denied without prejudice in light of this proposed settlement. See Dkt. 260.

25 7 There were two exceptions for this system at the time the lawsuit was filed: ICE’s Free Call

26

Platform, which Plaintiffs maintain is difficult to use and provided access to only a small group of overburdened non-profits who were unable to represent most Class Members, and county lines

27

that to local offices relevant to criminal pretrial detainees such as the county public defender. Id.; Joint Supplemental Statement of Amended Undisputed Facts (Dkt. 237) ¶¶ 69, 98, and 124.

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1 Plaintiffs believe they were likely to succeed on the merits, the Settlement provides near-

2 complete relief to the Class and negotiation of a settlement in this manner allowed Plaintiffs to

3 shape the nature and substance of the relevant policies, as well as to secure robust monitoring to

4 ensure compliance with the terms of the Settlement. As such, this relief is in the best interests of

5 the Class, particularly given the scope and detail of the relief provided.

6

Moreover, even if Plaintiffs had achieved the same relief through a trial, it is likely that

7 the relief will be implemented more quickly through this Settlement than through an injunction.

8 Had Plaintiffs prevailed at trial, the Court presumably would have given Defendants the

9 opportunity to respond with an implementation plan, followed by objections and arguments from

10 Plaintiffs, with any disagreements resolved by the Court. See Lewis v. Casey, 518 U.S. 343, 362-

11 63 (1996) (approving of such a process). Depending on the nature and extent of such

12 disagreements, this process could be lengthy. Additionally, Defendants would have the right to

13 appeal an adverse final order, and any such appeal would further delay the date on which the

14 Class would achieve relief.

15

Further, the parties agree that it would be expensive and time-consuming to litigate this

16 case through a lengthy trial, that the outcome of a trial is uncertain, and that resolution of this

17 action through settlement is appropriate. The parties thus recognize that there was much more to

18 be gained through reasonable settlement discussions than through protracted litigation, trial, and

19 possible appeal.

20

B. The Settlement Is the Product of Serious, Informed, Non-Collusive

21

Negotiations Conducted by Experienced Class Counsel and with the

22

Participation of Magistrate Judges Ryu and Beeler.

23

Where a “proposed settlement appears to be the product of serious, informed, non-

24 collusive negotiations, has no obvious deficiencies, does not improperly grant preferential

25 treatment to class representatives or segments of the class and falls within the reasonable range of

26 approval, preliminary approval is granted.” Bourlas v. Davis Law Assocs., 237 F.R.D. 345, 355

27 (E.D.N.Y. 2006) (internal citations omitted). Further, the Ninth Circuit has recognized that

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1 “[p]arties represented by competent counsel are better positioned than courts to produce a

2 settlement that fairly reflects each party’s expected outcome in litigation.” In re Pac. Enters.

3 Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995). “The weight accorded to the recommendation of

4 counsel is dependent on a variety of factors; namely, length of involvement in the litigation,

5 competence, experience in the particular type of litigation, and the amount of discovery

6 completed. Usually, a consideration of the criteria involved leads the court to the conclusion that

7 the recommendation of counsel is entitled to great weight following arm’s-length settlement

8 negotiations.” 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions §11:47 (4th ed.

9 2002).

10

This Court has already found that Plaintiffs’ counsel is sufficiently experienced and

11 suitable to represent the class. See Order Granting Class Certification (Dkt. 31) at 10.8 Counsel

12 and the Named Plaintiffs have been involved in active, adversarial litigation for nearly 2.5 years

13 (except for Named Plaintiff Neria-Garcia, who became a Named Plaintiff in July 2015). During

14 this time, counsel for both parties had two rounds of settlement negotiations, the first from August

15 2014 to February 2015 and the second from March 2016 to May 2016. In the second round of

16 negotiations, the parties convened for an all-day settlement conference with Magistrate Judge

17 Ryu, followed by numerous additional telephonic conferences and email discussions. Mass Decl.

18 ¶ 9. During those settlement conferences, the parties discussed in detail every element of the

19 Settlement and considered alternative proposals, before arriving at the terms of the present

20 settlement. Id. Prior to arriving at the Settlement, Class Counsel also completed extensive and

21 thorough discovery and were prepared to go to trial on May 23, 2016---one week before the

22 principles of the Settlement were finally agreed upon by both parties. Class Counsel was also in

23 frequent and regular communication with class members during both rounds of settlement

24 8 The Court’s Order Granting Plaintiffs’ Motion for Class Certification found attorneys from the

25

ACLU of Northern California and Orrick to be adequate, but did not explicitly appoint Class Counsel. See Order Granting Plaintiffs’ Motion for Class Certification (Dkt. 31) at 10. For these

26

reasons, and for the purpose of including attorneys from the ACLU National Prison Project and Van Der Hout, Brigagliano & Nightingale (who had not appeared as attorneys for Plaintiffs at the

27

time of the original class certification motion) as Class Counsel, Plaintiffs concurrently file an Administrative Motion to Appoint Class Counsel.

28 UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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1 negotiations. See Mass Decl. ¶¶ 4, 9.

2

In light of the fact that Class Counsel wholeheartedly recommends this settlement after

3 years of active, adversarial litigation and complete discovery, there is simply no evidence “to

4 suggest that the settlement was negotiated in haste or in the absence of information illuminating

5 the value of plaintiffs’ claims” and thus the decision to settle was unreasonable. Hanlon,

6 150 F.3d at 1027. The sheer amount of time and effort that counsel for both parties put into

7 settlement negotiations (and litigating the case), in addition to the mediation efforts of Judges Ryu

8 and Beeler, demonstrates that counsels’ recommendation of the settlement is entitled to great

9 weight.

10

C. The Settlement Is Fair Because It Establishes a Baseline Level of Access for

11

All Class Members.

12

In terms of fairness among the Class Members, it is true that the Settlement’s provisions

13 vary slightly by facility. See Agreement at III.A.2 (Mesa Verde free call database will be

14 provided only if technologically feasible); B.1 (extending automatic cut-offs at Yuba and RCCC

15 to 40 minutes); C.4 (providing different numbers of phone booths at each Facility based on the

16 need/layout at each facility); D.2 and 3 (Class Members in segregation and other restricted

17 housing will be able to access phone booths within two hours of request, rather than all waking

18 hours and distinctions for certain Class Members in disciplinary segregation); E.2 (RCCC shall

19 create a Phone Room or other enclosed private space for legal calls); F.1 and F.2 (Mesa Verde

20 shall continue to deliver messages three times per day, while Yuba, RCCC, and Contra Costa

21 shall deliver messages within 24 hours unless urgent).

22

These variations reflect various practical obstacles, including the different physical plants

23 of the Facilities and differences in the security needs for Class Members housed in segregation

24 compared to those housed in general population units. Because Plaintiffs’ asserted rights to

25 telephone access are measured against legitimate government interests, any injunctive relief

26 ordered by a court would also need to take different operational and security concerns into

27 consideration. Further, despite these slight differences, the Settlement provides a baseline level

28 UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Case 3:13-cv-05878-EMC Document 262 Filed 06/13/16 Page 19 of 22

1 of access to all class members through expanded pro bono lines, phone booths, and Phone

2 Rooms. All Facilities will accommodate indigent detainees with 30 minutes of phone credit or

3 extra Phone Room access upon request. Agreement, § III.H. At all Facilities, Class Members will

4 be able to make unmonitored legal calls without being overheard by other detainees or staff

5 within at least 24 hours of requesting access to a Phone Room. Agreement, § III.E. Similarly, all

6 Facilities will deliver non-urgent legal messages within 24 hours and urgent attorney messages

7 within at least six waking hours, absent extraordinary circumstances. Agreement, § III.F.

8

D. Presence of Government Participants.

9

Defendants are all governmental officials sued in their official capacities and are using

10 limited public resources. This Settlement preserves those public resources by rendering further

11 litigation unnecessary, properly balances the concerns of the Department of Homeland Security

12 and ICE with the interests of the Class, avoids the time and expense of further litigation, and

13 results in a benefit to the public as a whole.

14

E. Reaction of Class Members to the Settlement.

15

Class Counsel will discuss this factor further in the motion for final approval. Named

16 Plaintiffs have been apprised of the terms of the Settlement and approve of the Settlement. See

17 Mass Decl. ¶ 11; and Declaration of Audley Barrington Lyon, Jr., Declaration of José Elizandro

18 Astorga-Cervantes, and Declaration of Nancy Neria-Garcia in support of Plaintiffs’ Motion for

19 Preliminary Approval, filed herewith.

20 V. THE COURT SHOULD APPROVE THE CLASS NOTICE AND NOTICE PLAN

21

UNDER RULE 23(E)(1)

22

Rule 23(e)(1) of the Federal Rules of Civil Procedure requires that, prior to final approval

23 of a class settlement, “[t]he court must direct to class members the best notice that is practicable

24 under the circumstances,” and notice to class members must be “clearly and concisely state[d] in

25 plain, easily understood language.” Fed. R. Civ. P. 23(c)(2)(B). “Notice is satisfactory if it

26 ‘generally describes the terms of the settlement in sufficient detail to alert those with adverse

27 viewpoints to investigate and to come forward and be heard.’” Churchill Vill., LLC, 361 F.3d at

28 UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Case 3:13-cv-05878-EMC Document 262 Filed 06/13/16 Page 20 of 22

1 575 (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)). The

2 proposed Class Notice and Notice Plan accomplish this. See * at VII (Notice Plan); Ex. * to the

3 Settlement (proposed notice). The Class Notice provides a summary description of the case and

4 Settlement, as well as the Class definition, in plain language readable by laypersons. The

5 headings are in bold and plainly describe the different topics covered by the Notice. A summary

6 of the telephone access to be provided is listed in bullet points. Class Members who wish to read

7 a complete copy of the Agreement or Plaintiffs’ Motion for Attorneys’ Fees may request copies

8 from ICE agents that regularly visit the Facilities or by contacting Class Counsel by telephone or

9 mail.

10

The proposed notice plan is also reasonably calculated to reach current class members.

11 See Fed. R. Civ. P. 23(e)(1); Settlement Agreement § VII. In similar cases involving prisoners

12 and detainees, courts have held that providing notice by postings in the detention facilities,

13 postings on government websites, and dissemination through organizations that work with class

14 members is sufficient when supplemented by hand delivery for certain subsets of the class, and

15 that individual mailed notice to the entire class is not required. See, e.g., Van Horn v. Trickey,

16 840 F.2d 604, 606 (8th Cir. 1988) (holding that flyers posted on the walls at correctional facility

17 was sufficient notice); Alfaro-Garcia v. Johnson, No. 4:14-cv-01775-YCR (N.D. Cal. Aug. 20,

18 2015) (approving notice to immigration detainee class by posting notice in detention facilities

19 where class members may be housed and on websites of government agency defendant and class

20 counsel organizations and by distributing to network of community-based and non-profit

21 organizations that provide advice and assistance to immigrants); Hall v. County of Fresno, No.

22 1:11–cv–02047–LJO–BAM , 2015 WL 5916741, at *3, *8 (E.D. Cal. Oct. 7, 2015) (approving

23 notice to prisoner class by posting notice in English and Spanish in all housing units and hand-

24 delivering to prisoners in lockdown and restricted housing units); Hernandez v. County of

25 Monterey, No. 5:13-cv-002354-PSG (N.D. Cal. May 15, 2015) (approving notice to prisoner class

26 by posting notice throughout jail, providing copies in law library, providing individual copies

27 upon prisoner request, and providing by mail or hand-delivery to prisoners in satellite facilities).

28 UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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1 Similar to the notice plans approved in Van Horn, Hall, Hernandez, and Alfaro-Garcia, the

2 Notice will be posted in prominently visible areas of the housing units where Class Members are

3 held, as well as on ICE and the ACLU of Northern California websites and sent to immigration

4 attorneys through local list serves used by immigration attorney associations. Id. Class Members

5 held in segregation and other restricted units will receive individual copies of the Notice. Id.

6

The Notice also describes the process for raising objections and provides the addresses to

7 which objections must be mailed. See Agreement, Exhibit B. The objection procedure itself is

8 simple: the Class member may submit an objection to the Court in writing, and the Notice

9 includes a form on which Class Members can write their objections to the Court. Class Members

10 can request copies of the objection form from visiting ICE agents. For Class Members who do

11 not wish to use the form and prefer to file other written papers or briefs with the Court, the Notice

12 instructs that those papers must clearly identify the case name and number; provide the Class

13 Member’s full name and current detention facility or address, a signed declaration that the

14 objector is a member of the Class, the specific grounds for objection, all documents or writings

15 the objector desires the Court to consider, and whether the objector intends to appear at the

16 Fairness Hearing; and be submitted by mail to the Class Action Clerk or filed in District Court for

17 the Northern District of California by a date certain (to be determined by the Court). Agreement,

18 Exhibit B, p. 5.

19

The parties propose that within 10 business days of preliminary approval of the Settlement

20 by the Court, the parties will publish the notice in the manner outlined above until the Court

21 issues an order finally approving or rejecting the settlement. Class members will have 45 days to

22 respond to the proposed notice by submitting objections to the Court. Twenty-one days after

23 expiration of the objections period, counsel will file the motion for final approval, to be set on the

24 Court’s next available hearing day as a regularly scheduled motion. See Proposed Order

25 Preliminarily Approving Settlement, filed herewith.

26 VI. CONCLUSION

27

For the foregoing reasons, Plaintiffs request that the Court issue an order: (1) granting

28 UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Case 3:13-cv-05878-EMC Document 262 Filed 06/13/16 Page 22 of 22

1 preliminary approval of the Settlement; (2) approving the proposed Class Notice and ordering

2 compliance with the process for distribution of the Notice set forth in the Agreement; and (3) set a

3 date and time for the Fairness Hearing.

4

5

6 Dated: June 13, 2016 7 8

/s/ Robert P. Varian

.

ROBERT P. VARIAN

ORRICK HERRINGTON & SUTCLIFFE LLP

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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CASE NO. 13-CV-05878-EMC

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EXHIBIT A

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 28 of 47

.-- VERTICAL STEEL
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I

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 29 of 47
EXHIBIT B

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 30 of 47
NOTICE OF PROPOSED SETTLEMENT REGARDING TELEPHONE ACCESS IN IMMIGRATION DETENTION
LYON, ET AL. V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ET AL., Case No. 3:13-cv-05878-EMC
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
TO: All current and future adult immigration detainees who are or will be held by ICE in Contra Costa County, Kern County, Sacramento County, or Yuba County.
Purpose of this Notice
This notice has three purposes: 1) to tell you about the proposed settlement and the fairness hearing in this class-action lawsuit; 2) to tell you how to obtain more information, including a copy of the full proposed settlement agreement; and 3) to explain how you may object to the proposed settlement if you disagree with it.
Background on the Lawsuit
This class action lawsuit asserts that U.S. Immigration and Customs Enforcement (ICE) does not provide adequate telephone access for immigration detainees housed in Contra Costa West County Detention Facility, Yuba County Jail, Rio Cosumnes Correctional Center (RCCC), and Mesa Verde Detention Facility (collectively, the Facilities). Specifically, the lawsuit asserts that ICE is violating the statutory and constitutional rights of immigration detainees because the telephone access conditions in the Facilities: (1) prevent detainees from retaining and communicating effectively with lawyers, and (2) prevent detainees from gathering evidence to present in immigration-related proceedings. The lawsuit seeks changes to ICE and Facility policies; it does not ask for money damages.
Class Counsel (representing the interests of detainees in the Facilities) and ICE’s attorneys have negotiated a settlement. The Court has given preliminary approval to this settlement, and the next step is for the Court to consider any comments and objections from class members. A hearing has been scheduled for __________________, 2016, at _____.m. before the Honorable Edward M. Chen of the United States District Court for the Northern District of California in Courtroom 5 – 17th Floor at the San Francisco Courthouse, 450 Golden Gate Ave., San Francisco, California. At this hearing, the Court will consider whether the proposed settlement is fair, reasonable, and adequate. The Court will then either approve the settlement or order the parties to continue litigating.
Description of the Proposed Settlement Agreement
Below is a summary of the key points in the settlement agreement. To get a copy of the full agreement, see the section entitled “For Further Information” after this summary.
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Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 31 of 47
1. There will be more ways to make legal calls from housing unit phones and new phone booths for privacy in housing units.
a. ICE will add speed-dials to make free, direct, unmonitored calls to more government offices and some attorneys from the housing unit phones. ICE will set up more speed-dial numbers (similar to ICE’s pro bono platform) that will connect without needing a live person to answer and accept the call, that will not be recorded or monitored, and that will be cost-free for the caller and recipient. These numbers will include police departments, probation departments, state and federal courts, and rehabilitation centers as well as attorneys who provide a mix of paid and pro bono immigration representation and have requested to be added to the platform.
b. ICE will create a list of attorneys who can be called without needing a live person to answer. ICE will allow attorneys (including those who only provide paid representation) to receive calls from the housing unit phones without needing a live person to answer the telephone. These calls will not be recorded or monitored.
c. ICE will install phone booths in and around housing units for case-related telephone calls. ICE has agreed to install a total of 40 phone booths that will be distributed among the four Facilities. These phone booths will operate like the housing unit phones, but with more privacy.
d. ICE will ensure access to phone booths. Except during count and lockdowns, detainees will be able to use phone booths any time during waking hours (including non-free time at Contra Costa). Detainees who are housed in places where they need staff to escort them to a phone booth, such as segregation, will receive access within two waking hours of making a request, absent extraordinary circumstances (which must be reported to ICE). For detainees in disciplinary segregation whose discipline includes limits on telephone access, these requirements apply only to personal or family emergencies, Legal Calls, or calls that are otherwise justified by a compelling need.
e. ICE will extend automatic cut-offs for telephone calls. i. Yuba: Cut-offs for the housing unit phones will be extended from 20 minutes to 40 minutes, and there will be no automatic cut-off in the Yuba phone room. ii. RCCC: Cut-offs for the housing unit phones will be extended from 20 minutes to 40 minutes. iii. All Facilities: The automatic cut-off for calls from ICE’s pro bono platform will be extended to 60 minutes. iv. Based on demonstrated need in individual circumstances, ICE may impose time limits on telephone calls to ensure everyone has access.
2

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2. There will be more ways to make legal calls from private phone rooms.
a. Immigration detainees will be allowed to use private phone rooms for legal calls, including calls to non-attorneys. i. In general: These calls will not be recorded or monitored, and will not require a live person to answer. When connecting the call, Facility staff or ICE personnel can check the call recipient’s name and ask if the call recipient agrees to speak to the caller, but cannot announce the detainee is calling from a jail or detention facility. If nobody answers, the caller will be able to leave voicemail messages and navigate automated answering systems that require dialing an extension. ii. Calls to attorneys: Immigration detainees will be able to call attorneys from these phones for long calls or calls that need extra privacy. Also, attorneys may request calls be scheduled at particular times. iii. Calls to non-attorneys: Immigration detainees will be able to call non-attorneys from these phones if the call is case-related (for example, to request a supportive letter or to get help obtaining documents) and the detainee has already tried and been unable to contact the person using a housing unit phone. iv. RCCC and Yuba: A phone room, phone booth, or other enclosure will be added to meet this requirement at RCCC, which currently has no private phone room. Privacy will be improved in the Yuba phone room.
b. Phone room calls will be generally limited to 30 minutes but immigration detainees can request longer calls. However, in periods of high demand, ICE may limit call lengths to ensure everyone has access.
3. On-site facilitators at each Facility will process telephone requests and provide timely access to phone rooms. Calls will ordinarily be provided within 8 waking hours, and (except in extraordinary circumstances) always within 24 hours of a request.
4. Each Facility will take and deliver non-confidential phone and/or email messages related to immigration detainees’ immigration cases within 24 hours.
5. For detainees who cannot afford to pay for phone calls, ICE will provide extra phone room access or phone credit. This will be available to detainees who have had less than $15 on their commissary account for 10 consecutive days at the time of the request.
6. ICE will make accommodations for international legal calls and three-way calling for legal calls. There will be a system for requesting international legal calls even if international calls cannot be dialed from housing unit phones or phone rooms. Upon request and statement of a need, such as needing an interpreter to join a call, ICE will facilitate 3-way calls in the Facility (if possible) or at the nearest field office.
3

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7. ICE will assist people who do not read English or Spanish. ICE will post a notice in 10 common written languages telling detainees to ask Facility staff for translations of telephone access materials and assistance with telephone access. On request, if local interpretation is not adequate or available, ICE will use a telephone-based “language line” interpreter to provide further explanations. Additionally, if a detainee is trying to call a person who does not speak English and cannot understand the automatic prompts to accept a call, the detainee can use the Phone Room to call that person for case-related calls.
8. ICE will require training of all local ICE officers with duties related to detention and Facility staff whose duties include supervising detainees or providing telephone access. ICE will also add detail to the inspection forms it uses in detention facilities across the country to evaluate compliance with detention standards regarding privacy for legal calls, timeliness in responding to telephone requests, availability of message delivery systems, availability of translation and interpretation services, and access to telephones for detainees in segregation.
9. Five Year Agreement. ICE will have one year after the Court finally approves the Settlement to make the required changes. The Settlement will be in effect for four years after that. During this time, ICE must provide information to Class Counsel to monitor and enforce the Settlement, including providing various documents and allowing Class Counsel to visit the Facilities to interview detainees.
10. The Court can enforce the agreement if there are any violations. The Court will retain jurisdiction over the case to enforce the terms of the Settlement Agreement.
11. Attorneys’ fees and costs. The Government will pay $405,000 to Class Counsel in settlement of all claims for fees and expenses. See below for how to obtain more information about the attorneys’ fees settlement.
12. Release of claims. Class Members will release the government from all claims for declaratory or injunctive relief that were brought on behalf of Class Members based on the facts and circumstances alleged in the lawsuit.
For further information:
THIS IS A SUMMARY OF THE AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. You can get copies of the final settlement agreement, Class Counsel’s motion seeking the Court’s approval of the attorneys’ fees provision of the settlement, and copies of this Notice from: 1) Visiting ICE agents; 2) ICE’s website (www.ice.gov); 3) the ACLU of Northern California website (www.aclunc.org/our-work/legaldocket/lyon-v-ice-telephone-access-immigration-detainees); 4) by calling Class Counsel by using speed dial number #9160 through ICE’s pro bono call platform or by calling (415) 621-2493, ext. 329; 5) the
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electronic docket in this case (Case No. 13-cv-05878 EMC), available at https://ecf.cand.uscourts.gov; or 6) by writing to Class Counsel at the address listed below:
Class Counsel Lyon v. ICE Class Action Settlement c/o ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111
If calling or writing to Class Counsel, please indicate in your message or letter what you are asking for (a copy of the settlement agreement, the attorneys’ fee motion, or the Notice), your name, and how to get in touch with you. If you are in custody, say the detention center where you are currently in custody. If you are out of custody, please provide your address and telephone number.
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT.
Procedures for Objecting to the Proposed Settlement:
You can ask the Court to deny approval of the settlement by filing an objection. You cannot ask the Court to order a different settlement; the Court can only approve or deny the settlement. If the Court denies approval, the settlement provisions will not be implemented and the lawsuit will continue. If that is what you want to happen, you must object.
If you object to the proposed settlement, you should do it in writing and must submit the written objection to the Court. Attached to this notice is a sample objection form that you may use to file a written objection. You can request additional copies of this form from ICE agents that visit your detention facility. If you file an objection, you may also choose to appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney if required.
All written objections and supporting papers must:
(a) Clearly identify the case name and number (Lyon v. ICE, Case No. 13-cv-05878 EMC); (b) Provide: (i) the Class Member’s full name and current detention facility or address, (ii) a
signed declaration that the Class Member is a member of the Class, (iii) the specific grounds for the objection, (iv) all documents or writings the Class Member wants the Court to consider, and (v) whether the Class Member intends to appear at the Fairness Hearing. (c) Be submitted to the Court either by mailing them to the Class Action Clerk, United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, or by filing them in person at any location of the United States District Court for the Northern District of California; (d) Be filed or postmarked on or before _____________, 2016.
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

AUDLEY BARRINGTON LYON, JR., et al., ) Case No. 3:13-cv-05878-EMC

Plaintiffs,

) )

v.

)

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

) OBJECTION TO PROPOSED ) SETTLEMENT )

Defendants.

) Hon. Edward. M. Chen )

To the Honorable Court:

I believe I am a Class Member because I am currently detained by ICE at (check one): __ West County Detention Facility in Contra Costa County __ Yuba County Jail in Yuba County __ Rio Cosumnes Correctional Center in Sacramento County __ Mesa Verde Detention Facility in Kern County

I object to the proposed settlement because: ____________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________________________________ [attach additional sheets if necessary]

I intend to appear at the Court for the Fairness Hearing: ☐ Yes ☐ No

My signature verifies that everything I have stated above is true.

Dated: ______________

Signature: ________________________________

Name:

________________________________

“A number”: ________________________________

Address: ________________________________

________________________________

6

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EXHIBIT C

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 37 of 47

1 ROBERT P. VARIAN (SBN 107459) CHARLES J. HA (pro hac vice)
2 ALEXIS YEE-GARCIA (SBN 277204) ORRICK, HERRINGTON & SUTCLIFFE LLP
3 The Orrick Building 405 Howard Street
4 San Francisco, California 94105-2669 Telephone: (415) 773-5700
5 Facsimile: (415) 773-5759 Email: rvarian@orrick.com
6 AMERICAN CIVIL LIBERTIES UNION
7 FOUNDATION OF NORTHERN CALIFORNIA JULIA HARUMI MASS (SBN 189649)
8 ANGELICA SALCEDA (SBN 296152) CHRISTINE P. SUN (SBN 218701)
9 MICHAEL T. RISHER (SBN 191627) 39 Drumm Street
10 San Francisco, CA 94111 Telephone: (415) 621-2493
11 Facsimile: (415) 255-8437 Email: jmass@aclunc.org
12 Attorneys for Plaintiffs

13 [Additional Counsel appear on following page]

14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16

17 AUDLEY BARRINGTON LYON, JR., et al., on behalf of themselves and all others similarly
18 situated,

Case No.: 13-cv-05878-EMC

19

Plaintiffs,

20

v.

FINAL ORDER APPROVING SETTLEMENT AND DISMISSING CASE

21 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
22

23

Defendants.

Hon. Edward M. Chen

24

25

26

27

28

FINAL ORDER APPROVING SETTLEMENT CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 38 of 47

1 AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISON PROJECT
2 CARL TAKEI (SBN 256229) 3 915 15th Street N.W., 7th Floor
Washington, DC 20005 4 Telephone: (202) 393-4930
Facsimile: (202) 393-4931 5 Email: ctakei@aclu.org
6 VAN DER HOUT, BRIGAGLIANO, & NIGHTINGALE, LLP 7 MARC VAN DER HOUT (SBN 80778)
MEGAN SALLOMI (SBN 300580) 8 180 Sutter Street, Suite 500
San Francisco, CA 94104 9 Telephone: (415) 981-3000 10 Facsimile: (415) 981-3003
Email: msal@vblaw.com 11
Attorneys for Plaintiffs 12
13
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1

FINAL ORDER APPROVING SETTLEMENT CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 39 of 47

1

WHEREAS Plaintiffs Audley Barrington Lyon, Jr., José Elizandro Astorga-Cervantes,

2 and Nancy Neria-Garcia, on behalf of themselves and all class members (collectively, “Plaintiff

3 Class”), by and through their counsel of record, have asserted claims for declaratory and

4 injunctive relief against Defendants U.S. Immigration and Customs Enforcement (“ICE”); Sarah

5 Saldaña in her official capacity as Director of ICE; the U.S. Department of Homeland Security;

6 Jeh Johnson in his official capacity as Secretary of Homeland Security, and Adrian Macias in his

7 official capacity as Acting Field Office Director for ICE’s San Francisco Field Office

8 (collectively “Defendants”), alleging violations of the Immigration and Nationality Act, 8 U.S.C.

9 § 1101 et seq. and the First and Fifth Amendments to the U.S. Constitution; and

10

WHEREAS on April 16, 2014, the Court certified a class of “[a]ll current and future

11 immigration detainees who are or will be held by ICE in in Contra Costa, Sacramento, and Yuba

12 Counties” (ECF No. 31);

13

WHEREAS on July 27, 2015, the Court granted Plaintiffs’ motion to modify the certified

14 class to include “[a]ll current and future adult immigration detainees who are or will be held by

15 ICE in Contra Costa County, Kern County, Sacramento County, or Yuba County” (“Plaintiff

16 Class”) (ECF No. 98);

17

WHEREAS on March 18, 2016, the Court granted in part and denied in part Defendants’

18 motion for summary judgment and denied Plaintiffs’ motion for summary judgment (ECF No.

19 167);

20

WHEREAS the Court found that Plaintiffs’ Counsel are adequate to represent the Plaintiff

21 Class under Federal Rule of Civil Procedure 23(g)(1) and (4), and appointed Plaintiffs’ Counsel

22 as Class Counsel under Rule 23(g) in an Order dated ___________, 2016; and

23

WHEREAS the Plaintiff Class and Defendants entered into a settlement of the above-

24 captioned matter (“Settlement”) and executed a Settlement Agreement and Release (“Settlement

25 Agreement”), which has been filed with the Court; and

26

WHEREAS the Court preliminarily approved the Settlement in an Order dated

27 _________, 2016; and

28

2

FINAL ORDER APPROVING SETTLEMENT CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 40 of 47

1

WHEREAS the Court held a hearing on _____________, 2016, where the Court found the

2 Settlement reasonable and fair; and

3

WHEREAS it appears notice of the Settlement has been adequately provided to the Class

4 as provided for by the Court’s Order Granting Preliminary Approval; and

5

WHEREAS the Plaintiff Class has filed with the Court a Motion for Final Approval of the

6 Settlement, together with supporting documents; and

7

WHEREAS the Court held a hearing on __________________________, 2016 to

8 consider the final approval of the Settlement, and any objections to the foregoing filed before or at

9 the time of the hearing;

10

WHEREAS the Court has considered the Settlement between the Plaintiff Class and the

11 Defendants, and the pleadings and documents submitted in connection with the parties’ request

12 for final approval of the Settlement, and good cause appearing therefore,

13

WHEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

14

1.

The Court has jurisdiction over the subject matter of this action. The Court has

15 personal jurisdiction over the Plaintiff Class (as defined in the Court’s orders granting Plaintiffs’

16 motions for class certification and for modification of the class certification order, ECF Nos. 31

17 and 98) and Defendants.

18

2.

Under Federal Rule of Civil Procedure 23(e), the Settlement as set forth in the

19 Settlement Agreement is approved as fair, reasonable, adequate, and in the best interests of the

20 Plaintiff Class. The Court finds that the Settlement appears to have resulted from arm’s length

21 negotiations by and among counsel for the parties who were reasonably skilled and prepared and

22 who represented the best interests of their respective clients in negotiating the Settlement. The

23 settlement negotiations that led to the Settlement took place in mediations sessions supervised by

24 Magistrate Judge Donna Ryu, with assistance from Magistrate Judge Laurel Beeler. This provides

25 the Court with further assurance that the negotiations leading to the Settlement were good faith,

26 arm’s length negotiations, based on a sufficiently developed record, and which appropriately

27 considered the risks of trial, the potential resolution, and all other relevant factors leading to

28 Settlement.

3

FINAL ORDER APPROVING SETTLEMENT CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 41 of 47

1

3.

The Court further finds that the settlement of attorneys’ fees and costs in Section

2 XI of the Settlement Agreement was the result of arm’s length and good faith negotiations

3 supervised by Magistrate Judges Ryu and Beeler. The attorney’s fees and costs provision appears

4 to have taken into consideration the right of Plaintiffs to seek an award of fees that would be

5 substantially higher than the amount agreed to, the risks of trial, and all other relevant factors. The

6 Court therefore approves the award of the Attorneys’ Fee Settlement Amount contained in the

7 Settlement Agreement and orders that that the Attorneys’ Fee Settlement Amount be paid in

8 accordance with the Settlement Agreement.

9

4.

The Court further finds the Notice to the Class was reasonably calculated to

10 apprise the Class of the pendency of this action and all material elements of the proposed

11 settlement, constituted the best notice practicable under the circumstances, and constituted due and

12 sufficient notice.

13

5.

This Final Order adopts and incorporates herein by reference in its entirety the

14 Settlement Agreement submitted as Exhibit 1 to the Declaration of Julia Harumi Mass, filed with

15 Plaintiffs’ Unopposed Motion for Preliminary Approval of the Class Action Settlement (ECF No.

16 __). The parties are directed to implement the Settlement Agreement in accordance with its terms

17 and provisions.

18

6. In accordance with Section XII.A of the Settlement Agreement, this action is

19 hereby dismissed with prejudice. Without in any way affecting the finality of this Final Order, this

20 Court retains jurisdiction for the purpose of enforcing the Settlement Agreement and as to all

21 matters relating to the interpretation and enforcement of the Settlement Agreement.

22

7. The Court finds this Final Order adjudicates all of the claims, rights, and liabilities

23 of the Parties to the Settlement, and is intended to be a final judgment within the meaning of Rule

24 54 of the Federal Rules of Civil Procedure.

25

26

27

28

4

FINAL ORDER APPROVING SETTLEMENT CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 42 of 47

1 IT IS SO ORDERED. 2 3 Dated _____________ 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

_________________________________________ Hon. Edward M. Chen U.S. District Court Judge

5

FINAL ORDER APPROVING SETTLEMENT CASE NO.: 13-CV-05878 EMC

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 43 of 47
EXHIBIT D

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 44 of 47
NOTICE OF FINAL SETTLEMENT REGARDING TELEPHONE ACCESS IN IMMIGRATION DETENTION
LYON, ET AL. V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ET AL., Case No. 3:13-cv-05878-EMC
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
TO: All current and future adult immigration detainees who are or will be held by ICE in Contra Costa County, Kern County, Sacramento County, or Yuba County.
You are hereby notified that on ________________, 2016, the Honorable Edward M. Chen of the United States District Court for the Northern District of California approved a settlement of the claims that were brought on your behalf in this lawsuit.
Background on the Lawsuit
This class action lawsuit asserted that U.S. Immigration and Customs Enforcement (ICE) does not provide adequate telephone access for immigration detainees housed in Contra Costa West County Detention Facility, Yuba County Jail, Rio Cosumnes Correctional Center (RCCC), and Mesa Verde Detention Facility (collectively, the Facilities). Specifically, the lawsuit asserted that ICE is violating the statutory and constitutional rights of immigration detainees because the telephone access conditions in the Facilities: (1) prevent detainees from retaining and communicating effectively with lawyers, and (2) prevent detainees from gathering evidence to present in immigration-related proceedings. The parties reached a settlement that the Court has approved.
Description of the Settlement Agreement
Below is a summary of the key points in the settlement agreement. To get a copy of the full agreement, see the section entitled “For Further Information” after this summary.
1. There will be more ways to make legal calls from housing unit phones and new phone booths for privacy in housing units.
a. ICE will add speed-dials to make free, direct, unmonitored calls to more government offices and some attorneys from the housing unit phones. ICE will set up more speed-dial numbers (similar to ICE’s pro bono platform) that will connect without needing a live person to answer and accept the call, that will not be recorded or monitored, and that will be cost-free for the caller and recipient. These numbers will include police departments, probation departments, state and federal courts, and rehabilitation centers as well as attorneys who provide a mix of paid and pro bono immigration representation and have requested to be added to the platform.
1

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 45 of 47
b. ICE will create a list of attorneys who can be called without needing a live person to answer. ICE will allow attorneys (including those who only provide paid representation) to receive calls from the housing unit phones without needing a live person to answer the telephone. These calls will not be recorded or monitored.
c. ICE will install phone booths in and around housing units for case-related telephone calls. ICE has agreed to install a total of 40 phone booths that will be distributed among the four Facilities. These phone booths will operate like the housing unit phones, but with more privacy.
d. ICE will ensure access to phone booths. Except during count and lockdowns, detainees will be able to use phone booths any time during waking hours (including non-free time at Contra Costa). Detainees who are housed in places where they need staff to escort them to a phone booth, such as segregation, will receive access within two waking hours of making a request, absent extraordinary circumstances (which must be reported to ICE). For detainees in disciplinary segregation whose discipline includes limits on telephone access, these requirements apply only to personal or family emergencies, Legal Calls, or calls that are otherwise justified by a compelling need.
e. ICE will extend automatic cut-offs for telephone calls. i. Yuba: Cut-offs for the housing unit phones will be extended from 20 minutes to 40 minutes, and there will be no automatic cut-off in the Yuba phone room. ii. RCCC: Cut-offs for the housing unit phones will be extended from 20 minutes to 40 minutes. iii. All Facilities: The automatic cut-off for calls from ICE’s pro bono platform will be extended to 60 minutes. iv. Based on demonstrated need in individual circumstances, ICE may impose time limits on telephone calls to ensure everyone has access.
2. There will be more ways to make legal calls from private phone rooms.
a. Immigration detainees will be allowed to use private phone rooms for legal calls, including calls to non-attorneys. i. In general: These calls will not be recorded or monitored, and will not require a live person to answer. When connecting the call, Facility staff or ICE personnel can check the call recipient’s name and ask if the call recipient agrees to speak to the caller, but cannot announce the detainee is calling from a jail or detention facility. If nobody answers, the caller will be able to leave voicemail messages and navigate automated answering systems that require dialing an extension.
2

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 46 of 47
ii. Calls to attorneys: Immigration detainees will be able to call attorneys from these phones for long calls or calls that need extra privacy. Also, attorneys may request calls be scheduled at particular times.
iii. Calls to non-attorneys: Immigration detainees will be able to call non-attorneys from these phones if the call is case-related (for example, to request a supportive letter or to get help obtaining documents) and the detainee has already tried and been unable to contact the person using a housing unit phone.
iv. RCCC and Yuba: A phone room, phone booth, or other enclosure will be added to meet this requirement at RCCC, which currently has no private phone room. Privacy will be improved in the Yuba phone room.
b. Phone room calls will be generally limited to 30 minutes but immigration detainees can request longer calls. However, in periods of high demand, ICE may limit call lengths to ensure everyone has access.
3. On-site facilitators at each Facility will process telephone requests and provide timely access to phone rooms. Calls will ordinarily be provided within 8 waking hours, and (except in extraordinary circumstances) always within 24 hours of a request.
4. Each Facility will take and deliver non-confidential phone and/or email messages related to immigration detainees’ immigration cases within 24 hours.
5. For detainees who cannot afford to pay for phone calls, ICE will provide extra phone room access or phone credit. This will be available to detainees who have had less than $15 on their commissary account for 10 consecutive days at the time of the request.
6. ICE will make accommodations for international legal calls and three-way calling for legal calls. There will be a system for requesting international legal calls even if international calls cannot be dialed from housing unit phones or phone rooms. Upon request and statement of a need, such as needing an interpreter to join a call, ICE will facilitate 3-way calls in the Facility (if possible) or at the nearest field office.
7. ICE will assist people who do not read English or Spanish. ICE will post a notice in 10 common written languages telling detainees to ask Facility staff for translations of telephone access materials and assistance with telephone access. On request, if local interpretation is not adequate or available, ICE will use a telephone-based “language line” interpreter to provide further explanations. Additionally, if a detainee is trying to call a person who does not speak English and cannot understand the automatic prompts to accept a call, the detainee can use the Phone Room to call that person for case-related calls.
8. ICE will require training of all local ICE officers with duties related to detention and Facility staff whose duties include supervising detainees or providing telephone access. ICE will also add detail to the inspection forms it uses in detention facilities across
3

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 47 of 47
the country to evaluate compliance with detention standards regarding privacy for legal calls, timeliness in responding to telephone requests, availability of message delivery systems, availability of translation and interpretation services, and access to telephones for detainees in segregation.
9. Five Year Agreement. ICE will have one year after the Court approved the Settlement to make the required changes. The Settlement will be in effect for four years after that. During this time, ICE must provide information to Class Counsel to monitor and enforce the Settlement, including providing various documents and allowing Class Counsel to visit the Facilities to interview detainees.
10. The Court can enforce the agreement if there are any violations. The Court will retain jurisdiction over the case to enforce the terms of the Settlement Agreement.
11. Attorneys’ fees and costs. The Government will pay $405,000 to Class Counsel in settlement of all claims for fees and expenses. See below for how to obtain more information about the attorneys’ fees settlement.
12. Release of claims. Class Members will release the government from all claims for declaratory or injunctive relief that were brought on behalf of Class Members based on the facts and circumstances alleged in the lawsuit.
For further information:
THIS IS A SUMMARY OF THE AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. You can get copies of the final settlement agreement from: 1) Visiting ICE agents, 2) ICE’s website (www.ice.gov); 3) the ACLU of Northern California website (www.aclunc.org/our-work/legal-docket/lyon-v-ice-telephone-accessimmigration-detainees); 4) by calling Class Counsel by using speed dial number #9160 through ICE’s pro bono call platform or by calling (415) 621-2493, ext. 329; or 5) by writing to Class Counsel at the address listed below:
Class Counsel Lyon v. ICE Class Action Settlement c/o ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111
If calling or writing to Class Counsel, please indicate in your message or letter that you are asking for a copy of the settlement agreement, the name of the case (Lyon v. ICE), your name, and how to get in touch with you. If you are in custody, say the detention center where you are currently in custody. If you are out of custody, please provide your address and telephone number.
4

 
 Case 3:13-cv-05878-EMC Document 286 Filed 11/18/16 Page 1 of 4

United States District Court
For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 AUDLEY BARRINGTON LYON, et al.,

Case No. 13-cv-05878-EMC

8

Plaintiffs,

9

v.

10 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
11 Defendants.
12

ORDER FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT
Docket No. 280

13

WHEREAS Plaintiffs Audley Barrington Lyon, Jr., José Elizandro Astorga-Cervantes, and

14 Nancy Neria-Garcia, on behalf of themselves and all class members (collectively, “Plaintiff

15 Class”), by and through their counsel of record, have asserted claims for declaratory and injunctive

16 relief against Defendants U.S. Immigration and Customs Enforcement (“ICE”), Sarah Saldaña in

17 her official capacity as Director of ICE, the U.S. Department of Homeland Security, Jeh Johnson

18 in his official capacity as Secretary of Homeland Security, and Adrian Macias in his official

19 capacity as Acting Field Office Director for ICE’s San Francisco Field Office (collectively

20 “Defendants”), alleging violations of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.

21 and the First and Fifth Amendments to the U.S. Constitution; and

22

WHEREAS on April 16, 2014, the Court certified a class of “[a]ll current and future

23 immigration detainees who are or will be held by ICE in in Contra Costa, Sacramento, and Yuba

24 Counties” (ECF No. 31);

25

WHEREAS on July 27, 2015, the Court granted Plaintiffs’ motion to modify the certified

26 class to include “[a]ll current and future adult immigration detainees who are or will be held by

27 ICE in Contra Costa County, Kern County, Sacramento County, or Yuba County” (“Plaintiff

28 Class”) (ECF No. 98);

Case 3:13-cv-05878-EMC Document 286 Filed 11/18/16 Page 2 of 4

United States District Court
For the Northern District of California

1

WHEREAS on March 18, 2016, the Court granted in part and denied in part Defendants’

2 motion for summary judgment and denied Plaintiffs’ motion for summary judgment (ECF No.

3 167);

4

WHEREAS the Court found that Plaintiffs’ Counsel are adequate to represent the Plaintiff

5 Class under Federal Rule of Civil Procedure 23(g)(1) and (4), and appointed Plaintiffs’ Counsel as

6 Class Counsel under Rule 23(g) in an Order dated April 16, 2016; and

7

WHEREAS the Plaintiff Class and Defendants entered into a settlement of the above-

8 captioned matter (“Settlement”) and executed a Settlement Agreement and Release (“Settlement

9 Agreement”), which has been filed with the Court; and

10

WHEREAS the Court preliminarily approved the Settlement in an Order dated July 1,

11 2016; and

12

WHEREAS the Court held a hearing on November 18, 2016, where the Court found the

13 Settlement reasonable and fair; and

14

WHEREAS it appears notice of the Settlement has been adequately provided to the Class

15 as provided for by the Court’s Order Granting Preliminary Approval; and

16

WHEREAS the Plaintiff Class has filed with the Court a Motion for Final Approval of the

17 Settlement, together with supporting documents; and

18

WHEREAS the Court held a hearing on November 18, 2016 to consider the final approval

19 of the Settlement, and any objections to the foregoing filed before or at the time of the hearing;

20

WHEREAS the Court has considered the Settlement between the Plaintiff Class and the

21 Defendants, and the pleadings, documents, and two objections submitted in connection with the

22 parties’ request for final approval of the Settlement, and good cause appearing,

23

For the reasons stated on the record, it is ORDERED as follows:

24

1. The Court has jurisdiction over the subject matter of this action. The Court has

25

personal jurisdiction over the Plaintiff Class (as defined in the Court’s orders granting

26

Plaintiffs’ motions for class certification and for modification of the class certification

27

order, ECF Nos. 31 and 98) and Defendants.

28

2. Under Federal Rule of Civil Procedure 23(e), the Settlement as set forth in the

2

Case 3:13-cv-05878-EMC Document 286 Filed 11/18/16 Page 3 of 4

United States District Court
For the Northern District of California

1

Settlement Agreement is approved as fair, reasonable, adequate, and in the best interests of

2

the Plaintiff Class. The Court finds that the Settlement appears to have resulted from arm’s

3

length negotiations by and among counsel for the parties who were reasonably skilled and

4

prepared and who represented the best interests of their respective clients in negotiating the

5

Settlement. The settlement negotiations that led to the Settlement took place in mediation

6

sessions supervised by Magistrate Judge Donna Ryu, with assistance from Magistrate

7

Judge Laurel Beeler. This provides the Court with further assurance that the negotiations

8

leading to the Settlement were good faith, arm’s length negotiations, based on a

9

sufficiently developed record, and which appropriately considered the risks of trial, the

10

potential resolution, and all other relevant factors leading to Settlement.

11

3. The Court further finds that the settlement of attorneys’ fees and costs in Section

12

XI of the Settlement Agreement was the result of arm’s length and good faith negotiations

13

supervised by Magistrate Judges Ryu and Beeler. The attorneys’ fees and costs provision

14

appears to have taken into consideration the right of Plaintiffs to seek an award of fees that

15

would be substantially higher than the amount agreed to, the risks of trial, and all other

16

relevant factors.

17

4. The Court further finds the Notice to the Class was reasonably calculated to apprise

18

the Class of the pendency of this action and all material elements of the proposed

19

settlement, constituted the best notice practicable under the circumstances, and constituted

20

due and sufficient notice.

21

5. This Final Order adopts and incorporates herein by reference in its entirety the

22

Settlement Agreement submitted as Exhibit 1 to the Declaration of Julia Harumi Mass,

23

filed herewith. The parties are directed to implement the Settlement Agreement in

24

accordance with its terms and provisions.

25

6. In accordance with Section XII.A of the Settlement Agreement, this action is

26

hereby dismissed with prejudice. Without in any way affecting the finality of this Final

27

Order, this Court retains jurisdiction for the purpose of enforcing the Settlement

28

Agreement and as to all matters relating to the interpretation and enforcement of the

3

Case 3:13-cv-05878-EMC Document 286 Filed 11/18/16 Page 4 of 4

United States District Court
For the Northern District of California

1

Settlement Agreement.

2

7. The Court finds this Final Order adjudicates all of the claims that were brought in

3

this case and is intended to be a final judgment within the meaning of Rule 54 of the

4

Federal Rules of Civil Procedure.

5

6

This order disposes of Docket No. 280.

7

8

IT IS SO ORDERED.

9

10 Dated: November 18, 2016

11

______________________________________

EDWARD M. CHEN

12

United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4

 
 Case 3:13-cv-05878-EMC Document 287 Filed 11/18/16 Page 1 of 1

United States District Court
For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 AUDLEY BARRINGTON LYON, et al.,

Case No. 13-cv-05878-EMC

8

Plaintiffs,

9

v.

10 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
11 Defendants.
12

ORDER APPROVING AWARD OF ATTORNEYS’ FEES
Docket No. 263

13

The Motion for Award of Reasonable Attorneys’ Fees by Plaintiffs Audley Barrington

14 Lyon, Jr., José Elizandro Astorga-Cervantes, and Nancy Neria-Garcia, on behalf of themselves

15 and all others similarly situated, (collectively, “Plaintiffs”), by and through their counsel of record

16 was heard on November 18, 2016. For the reasons stated on the record, it is hereby ordered:

17

1. Plaintiffs’ Motion for Reasonable Attorneys’ Fees (“Motion”) is GRANTED;

18

2. The Court finds that the negotiated and agreed-upon award of $405,000 in

19

attorneys’ fees is fair and reasonable;

20

3. The Court further finds that the hourly rates and costs set forth in Plaintiffs’ Motion

21

are reasonable and appropriate.

22

The foregoing request is approved. This order disposes of Docket No. 263.

23

24

IT IS SO ORDERED.

25

26 Dated: November 18, 2016

27

______________________________________

EDWARD M. CHEN

28

United States District Judge

 
 Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 2 of 47

1

2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4

5 AUDLEY BARRINGTON LYON, JR., JOSÉ ) Case No. 3:13-cv-05878-EMC

6 ELIZANDRO ASTORGA-CERVANTES, and) NANCY NERIA-GARCIA , on behalf of )

7 themselves and all others similarly situated, )

)

8 Plaintiffs,

)

9

)

v.

)

10

)

11 UNITED STATES IMMIGRATION AND )

CUSTOMS ENFORCEMENT; SARAH

)

12 SALDAÑA, Director of U.S. Immigration and )

Customs Enforcement; UNITED STATES )

13 DEPARTMENT OF HOMELAND

)

14 SECURITY; JEH JOHNSON, Secretary of ) Homeland Security; and ADRIAN MACIAS, )

15 Acting Director of the San Francisco Field )

Office of U.S. Immigration and Customs )

16 Enforcement.1

)

17

)

Defendants.

)

18

19

SETTLEMENT AGREEMENT AND RELEASE

20 Plaintiffs in the above-captioned matter, on behalf of themselves and all Class Members, and
21 Defendants U.S. Immigration and Customs Enforcement (“ICE”); Sarah Saldaña, in her official capacity as Director of U.S. Immigration and Customs Enforcement; United States Department
22 of Homeland Security; Jeh Johnson, in his official capacity as Secretary of Homeland Security;
23 and Adrian Macias, in his official capacity as Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations; by and
24

25 1 Sarah Saldaña, Director, ICE, is substituted under Federal Rule of Civil Procedure 25(d) for 26 Acting Director John Sandweg, who was originally named as an official-capacity Defendant in
this Action. Adrian Macias, Acting Field Office Director, is substituted under Federal Rule of 27 Civil Procedure 25(d) for former Field Office Director Timothy Aitken, who was originally
named as an official-capacity Defendant in this Action.
28
Settlement Agreement and Release-1

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 3 of 47

through their attorneys, hereby enter into this Settlement Agreement and Release (“Agreement”),
1
as of the date it is executed by all parties hereto (the “Agreement Date”) and effective upon 2 approval of the Court pursuant to Rule 23 of the Federal Rules of Civil Procedure as set forth 3 below.

4 WHEREAS:

5

A. On December 19, 2013, Plaintiffs commenced a civil action against Defendants on behalf

6

of themselves and all others similarly situated, captioned Lyon et al. v. U.S. Immigration

7

and Customs Enforcement, et al., United States District Court for the Northern District of

California Case No. 3:13-cv-05878-EMC (the “Action”) and sought class certification,
8
designation of Class Counsel, and declaratory and injunctive relief.

9

10

B. On April 16, 2014, the United States District Court for the Northern District of California

(the “Court”) certified the proposed class under Federal Rule of Civil Procedure 23(b)(2).

11

The Court defined the certified class as: “All current and future immigration detainees

12

who are or will be held by ICE in Contra Costa, Sacramento, and Yuba Counties.”

13

C. Plaintiffs moved to amend the class certification order and class definition on June 11,

14

2015, and the Court granted Plaintiffs’ motion and modified the definition of the certified

class on July 27, 2015. The Court endorsed the modified class definition pleaded in

15

Plaintiffs’ Supplemental Complaint: “All current and future adult immigration detainees

16

who are or will be held by ICE in Contra Costa County, Kern County, Sacramento

County, or Yuba County.”
17

18

D. Defendants deny all liability with respect to the Action, deny that they have engaged in

19

any wrongdoing, deny the allegations in the Complaint, deny that they committed any

violation of law, deny that they acted improperly in any way, and deny liability of any

20

kind to the Plaintiffs or Class Members, but have agreed to the settlement and dismissal

21

of the Action with prejudice in order to: (i) avoid the substantial expense, inconvenience,

and distraction of further protracted litigation, including trial and appeal; and (ii) finally

22

put to rest and terminate the Action and any and all Settled Claims as defined in Section

23

I.G.

24
E. Both Plaintiffs and Defendants, through counsel, have conducted discussions and arm’s

25

length negotiations regarding a compromise and settlement of the Action with a view to

26

settling all matters in dispute.

27

28
Settlement Agreement and Release-2

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 4 of 47

F. Considering the benefits that the Plaintiffs and Class Members will receive from
1
settlement of the Action and the risks of litigation, Class Counsel have concluded that the

2

terms and conditions of this Agreement are fair, reasonable, and in the best interests of

3

the Plaintiffs and Class Members; Plaintiffs have agreed that Defendants shall be released

from the Settled Claims pursuant to the terms and provisions of this Agreement; and have

4

agreed to the dismissal with prejudice of this Action and all Settled Claims as defined in

5

Section I.G.

6 NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the parties to 7 this Agreement, through their respective attorneys, subject to the approval of the Court pursuant
to Rule 23(e) of the Federal Rules of Civil Procedure, in consideration of the benefits flowing to
8
the parties hereto from the Agreement, that the Settled Claims shall be compromised, settled, 9 forever released, barred, and dismissed with prejudice, upon and subject to the following terms 10 and conditions:

11 I.

DEFINITIONS:

12
Wherever used in this Agreement, the following terms have the meanings set forth below:
13

14

A. “Action” means the civil action captioned Lyon et al. v. U.S. Immigration and

Customs Enforcement, et al., Case No. 3:13-cv-05878-EMC, United States District

15

Court for the Northern District of California.

16

B. “Effective Date of Settlement” or “Effective Date” means the date upon which this

17

Agreement shall become effective, as set forth in Section VIII, below.

18

C. “Plaintiffs” means Audley Barrington Lyon, Jr., José Elizandro Astorga-Cervantes,

and Nancy Neria-Garcia.
19

D. “Class Member(s)” means any current or future adult immigration detainee who,

20

during the period of this Agreement, is or will be held by ICE in Contra Costa

21

County, Kern County, Sacramento County, or Yuba County.

22

E. “Plaintiffs’ Counsel” or “Class Counsel” means Julia Harumi Mass, Angélica

Salceda, Christine Sun, and Michael Risher of the American Civil Liberties Union
23
(“ACLU”) of Northern California; Carl Takei of the ACLU National Prison

24

Project; Robert Varian, Charles Ha, and Alexis Yee-Garcia of Orrick, Herrington &

25

Sutcliffe LLP; and Megan Sallomi and Marc Van Der Hout of Van Der Hout,

Brigagliano & Nightingale, LLP. Should these entities change their names or

26

merge with other entities, those new entities shall also qualify as Class Counsel.

27

28
Settlement Agreement and Release-3

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 5 of 47

F. “Defendants” means United States Immigration and Customs Enforcement
1
(“ICE”); Sara Saldaña, in her official capacity as Director of ICE; United States

2

Department of Homeland Security; Jeh Johnson, in his official capacity as

3

Secretary of Homeland Security; and Adrian Macias, in his official capacity as

Director of the San Francisco Field Office of ICE, their predecessors and

4

successors, their departments and agencies, and their past or present agents,

5

employees, and contractors.

6

G. “Settled Claims” means all claims for declaratory or injunctive relief that were

brought on behalf of Class Members based on the facts and circumstances alleged

7

in the Complaint and First Supplemental Complaint including but not limited to

8

claims that the telephone access afforded Class Members while in ICE custody

violated Class Members’ statutory rights and privileges under the Immigration and

9

Nationality Act, 8 U.S.C. § 1101 et seq., including access to counsel and their right

10

to present evidence in certain immigration proceedings; their rights to due process

under the Fifth Amendment to the U.S. Constitution; and their rights to petition the
11
government for redress of grievances under the First Amendment to the U.S.

12

Constitution.

13

H. “Settlement” means the settlement provided for in this Agreement.

14

I. “Contra Costa” means West County Detention Facility in Contra Costa County,

California.
15

J. “Yuba” means Yuba County Jail in Yuba County, California.
16

K. “RCCC” means Rio Cosumnes Correctional Center in Sacramento County,
17
California.

18

L. “Mesa Verde” means Mesa Verde Detention Facility in Kern County, California.

19

M. “Facilities” means Contra Costa, Yuba, RCCC, and Mesa Verde.

20

N. “Housing Unit Phones” means the telephones located in or near housing units at the

21

Facilities that Class Members may utilize for both Legal Calls and other telephone

calls.
22

O. “Phone Rooms” means the telephone-equipped enclosed rooms at Yuba, Contra

23

Costa, and Mesa Verde and the enclosed space ICE will add at RCCC to provide

24

free, direct, and non-monitored telephones for the Plaintiff Class.

25

P. “Legal Calls” means calls to attorneys and calls to third parties to facilitate the

gathering of evidence and obtaining legal advice and representation related to the

26

class member’s immigration case. Such third parties include but are not limited to:

27

government agencies, courts, employers, businesses, organizations, and friends and

28
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
25 II.
26 27 28

family members who may be testifying as witnesses, writing letters of support, and/or assisting the class member to find an attorney or obtain evidence.
Q. “Attorney Legal Call” means a Legal Call to an attorney regarding prospective, current, or past representation or for legal consultation. An Attorney Legal Call shall not require the attorney to have a G-28 on file for the detainee.
R. “Non-Attorney Legal Call” means any Legal Call other than an Attorney Legal Call.
S. “Positive Acceptance” means the requirement that for a telephone call to connect, the recipient must listen to a recorded message and take an affirmative step, typically pressing a particular key, to accept the call.
T. “Attorneys Performing Pro Bono Work” means any attorney who performs pro bono work as a part of their practice, and not just attorneys who exclusively perform pro bono work.
U. “Government Agencies and Offices” means federal, state, or local governmental agencies and offices that may facilitate the gathering of evidence for immigrationrelated proceedings and includes the following types of entities: California state courts, U.S. District Courts in California, the Ninth Circuit Court of Appeals, Federal and State Public Defender offices in California, major California Police, Sheriff, District Attorney, and Probation Departments, and northern California rehabilitation programs.
V. “Indigent Class Members” means Class Members who have had $15 or less on their commissary accounts for the previous ten days.
W. “Lockdown” means a restriction to cells or bunks during waking hours in response to a specific security incident; it does not include routine “free time” limitations at Contra Costa.
X. “Free Call” and “Free Calling” mean calls and calling where the call takes place at no cost to the caller and the recipient.
Y. “ICE DTS Provider Pro Bono Platform” means the Pro Bono Platform provided by ICE’s Detainee Telephone Service (“DTS”) Provider pursuant to a contract between ICE and the ICE DTS Provider. The current ICE DTS Provider is Talton Communications, Inc.
RELEASE: SCOPE AND EFFECT OF RELEASE
A. As of the Effective Date, the Plaintiffs and the Class Members, on behalf of themselves, their heirs, executors, administrators, representatives, attorneys, successors, assigns, agents, affiliates, and partners, and any persons they represent,
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1 2 3 4 5 6 7 8 9 10 11 12
13 III.
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

by operation of any final judgment entered by the Court, fully, finally, and forever release, relinquish, and discharge the Defendants of and from any and all of the Settled Claims. The foregoing release includes all claims for injunctive or declaratory relief, whether known or unknown, that could have been brought on behalf of Class Members at any time prior to the Effective Date. This Release shall not apply to claims that arise or accrue after the termination of this Agreement.
B. Defendants agree and acknowledge that this Agreement, and specifically this release, shall not impact any individual Class Member’s (other than the named Plaintiffs’) ability to bring a claim for monetary damages in his or her individual capacity arising from or related to injury suffered as a result of limitations or denial of telephone access while in ICE custody. Defendants also agree and acknowledge that this Agreement, and specifically this release, shall not impact any individual Class Member’s (other than the named Plaintiffs’) ability to argue (whether on a Petition for Review, motion to reopen, or other appeal, application, request for review of petition to modify such class member’s order of removal or other immigration order) that limitations on telephone access in ICE custody affected such individual Class Member’s immigration proceedings.
TELEPHONE ACCESS IN THE FACILITIES
A. Adding Free and Private Numbers to Housing Unit Phones
1. At Contra Costa, Yuba, and RCCC, the telephone numbers for certain Government Agencies and Offices and Attorneys Performing Pro Bono Work (as further identified in Paragraphs A.4 and A.5 below) shall be added to Free Call telephone platforms that enable Class Members to make Free Calls to these numbers from Housing Unit Phones without Positive Acceptance and without being recorded or monitored.
2. At Mesa Verde, the telephone numbers for certain Government Agencies and Offices and Attorneys Performing Pro Bono Work (as further identified in Paragraphs A.4 and A.5 below) shall be added to a database of telephone numbers that shall connect from the Mesa Verde Housing Unit Phones without Positive Acceptance and without being recorded or monitored. If technologically feasible, such numbers will also be Free Calls from the Mesa Verde Housing Unit Phones.
3. In addition to the Free Call platforms described in paragraphs A.1 and A.2, each of the Facilities shall enable Housing Unit Phones to make paid calls to attorney telephone numbers without Positive Acceptance and without being recorded or monitored. The attorney numbers shall be identified through the process described in paragraphs A.5, 6, 7 and 8.
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4. Plaintiffs shall provide lists of Government Agencies and Offices and
1
Defendants shall ensure their inclusion on the Free Call platforms and

2

database described in paragraphs A.1 and 2 above. Plaintiffs shall specify no

3

more than 10 rehabilitation centers for inclusion on each Facility’s platform or

database.

4
5. Attorneys may request that their phone numbers be added to the platforms and

5

databases described in Paragraphs A.1, A.2, or A.3 by emailing the number

6

and specific request to an email drop box to be provided by ICE. If an attorney

requests to be added to the Free Call platforms, the attorney’s telephone

7

number shall be added to the platforms described in A.1 and A.2 if s/he is an

8

Attorney Performing Pro Bono Work. If an attorney requests to be added to

the no-Positive-Acceptance databases, the attorney’s telephone number shall

9

be added to the databases described in A.3 regardless of whether s/he is an

10

Attorney Performing Pro Bono Work.

11

6. Attorneys may request that their phone numbers be removed from the

platforms and databases described in Paragraphs A.1, A.2, or A.3 by emailing
12
the specific request to the same email drop box to be provided by ICE.

13

7. The parties will work together to develop a notice to immigration attorneys

14

practicing in the San Francisco Immigration Court to allow them to be added

to the Free Call platforms and/or database of numbers not subject to Positive
15
Acceptance and recording and/or monitoring. Class Counsel will reach out to

16

organizations including American Immigration Lawyers Association, National

17

Lawyers Guild, and/or Federal Bar Association to request use of their email

listservs for this purpose

18
8. Class Members may submit attorney names and telephone numbers to ICE for

19

addition to the platforms and databases described in paragraphs A.1, 2, and 3.

20

If the attorney identified by the Class Member confirms that s/he wishes to be

added, ICE shall add the attorney’s telephone number to the platforms and

21

databases described in paragraph A.1 and A.2 (provided the attorney accepts

22

some pro bono immigration cases), or to the database described in paragraph

A.3
23
9. Platforms and databases described in A.1, A.2, and A.3 shall be updated

24

regularly, and no less than once a week, in response to requests under

25

paragraphs A.5, 6, 7, and 8.

10. Platforms and databases described in A.1, 2, and 3 shall be able to connect to
26
the telephone numbers for attorneys, Government Agencies and Offices

27

regardless of whether the numbers are toll-free or regular area code numbers.

28
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B. Extending and Eliminating Automatic Cut-Offs
1

1. ICE shall ensure that at Yuba and RCCC, Housing Unit Phone automatic cut-

2

offs are extended to 40 minutes.

3

2. ICE shall extend the automatic cut-off of the ICE DTS Provider Pro Bono

4

Platform calls to 60 minutes.

3. ICE shall ensure that the automatic cut-off of 20 minutes in the Yuba Phone

5

Room is eliminated.

6

4. ICE reserves the right to impose time limits to facilitate equitable access based

on demonstrated need in individual circumstances. Such time limits shall not

7

be shorter than 20 minutes per call.

8

C. Installing Phone Booths in Housing Units

9

1. Subject to Paragraphs C.2 and C.3, ICE shall install phone booths in the

10

common areas of the housing units where ICE detainees are held at each

facility. Where a housing unit has no common area, a phone booth will be

11

installed for Class Member use in a conveniently accessible location. A

12

rendering of the specifications and measurements of the type of proposed

phone booths is included as Exhibit A to this Agreement.

13

2. The phone booths shall provide sufficient privacy so that Legal Calls cannot

14

be overheard by officers, facility staff, or other detainees. This privacy shall

be afforded primarily by the physical characteristics of the booths and
15
augmented by their placement within the housing units.

16

3. The ability of other detainees or staff to overhear muffled sounds without

17

sufficient clarity to discern the caller’s words or language does not render the

call capable of being “overheard” for purposes of this Agreement.

18

4. ICE shall provide 40 phone booths, distributed as needed to provide equitable

19

access to Class Members in each Facility.

5. ICE shall instruct the Facilities that, in periods of high demand, Class

20

Members should have priority for use of the phone booths.

21

6. Class members shall be permitted to access the phone booths at any time

during each individual Facility’s waking hours (other than during count or
22
lockdowns), subject to the provisions in the “Physical Access to the Housing

23

Unit Phones” section, below.

24

D. Physical Access to Housing Unit Phones

25

1. Access to housing unit phones, including phone booths, shall be during

waking hours (other than during count or lockdowns), which is anytime other

26

than “lights out” at all four Facilities.

27

2. Class Members who want to use a phone booth but who are housed in areas

where they are unable to access a phone booth without staff intervention

28

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(including but not limited to segregation, subject to paragraph D.3 below)
1
shall receive access to a phone booth (or other private area, as appropriate)

2

within two waking hours of making a request. If the request is made at or

3

before 3:00 p.m., the Class Member shall receive access to a phone booth or

other private area within business hours on the day of the request. Further

4

delays may be justified by a lockdown of unusual length or other

5

extraordinary circumstances, but shall in all cases be documented and reported

to ICE. Each Facility shall establish a process for such class members to

6

notify the facilitator as needed to assist with calls. In some instances, the

7

housing unit officer will contact the facilitator rather than having the Class

Member directly contact the facilitator.
8

3. The above requirements apply fully to Class Members in segregation for

9

administrative reasons. However, if a Class Member is in segregation for

10

disciplinary reasons and restrictions have been properly imposed on that Class

Member’s general telephone calling privileges as part of the disciplinary
11
process, the above requirements regarding access to phone booths or other

12

private areas shall apply only to calls for personal or family emergencies,

13

Legal Calls, or otherwise justified by a compelling need.

14

E. Phone Rooms

1. ICE and the Facilities shall provide one or more Phone Rooms for Legal
15
Calls, including both Attorney Legal Calls and Non-Attorney Legal Calls, at

16

each Facility. A class member may request an Attorney Legal Call from the

17

Phone Room without first utilizing the Housing Unit Phones for particularly

sensitive or lengthy legal consultations. To make a Non-Attorney Legal Call

18

from the Phone Room, however, Class Members must first try to contact the

19

intended call recipient from the Housing Unit Phones and be unsuccessful.

2. With respect to RCCC, the Phone Room(s) provided may consist of an

20

enclosed room or another enclosed space (which may be a phone booth with

21

seating or another type of enclosed space located in the RCCC law library).

This shall ensure that Class Members can make free, direct, unrecorded and
22
unmonitored phone calls without being overhead by officers, other Facility

23

staff, or other Class Members or inmates of the Facility.

24

3. To accommodate interim Legal Call access at Contra Costa, whose system

25

currently will not allow the suspension of Positive Acceptance for paid calls

from housing unit phones and phone booths, ICE shall provide additional

26

Phone Room access. This requirement can be met by providing private

27

telephones without Positive Acceptance, such as phone booths equipped with

the same telephone systems as the telephones in the Phone Rooms either in

28

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the housing units or elsewhere in the Facility, as long as access to those
1
telephones complies with the other provisions of this section.

2

4. ICE shall ensure that Class Members can use at least one of the telephones in

3

the Yuba Phone Room without being overheard by officers, other staff, or

4

other detainees. Options include changing Yuba’s policy to limit use of the

Phone Room to one person at a time and installing a phone booth within the

5

Phone Room for one or both of the existing phones. Yuba Phone Room

6

phones shall not include a Positive Acceptance feature or automated outgoing

message.

7

5. Requests for Legal Calls will ordinarily be accommodated within eight facility

8

waking hours and shall be accommodated within 24 hours. Further delays may

be justified by extraordinary circumstances, but shall in all cases be

9

documented and reported to ICE.

10

6. Phone Room calls shall be scheduled for 30 minutes unless a detainee

specifies on his/her request form that a longer call will be needed. Facilities
11
shall accommodate requests for calls longer than 30 minutes. ICE reserves

12

the right to impose time limits on Phone Rooms in periods of high demand to

13

facilitate equal access for all detainees, consistent with the other terms of this

Agreement. Such time limits shall not be shorter than 20 minutes per call.

14

7. Each Facility shall modify its current request form for Class Members to

15

request access to Facility Phone Rooms as follows: The form shall include a

statement that Phone Room calls will be limited to 30 minutes unless the

16

Class Member indicates that a longer call is required, a space for class

17

members to request a particular time for Phone Room access and to indicate if

more than 30 minutes will be needed, and spaces for Class Members to
18
provide the name of the individual, agency or organization the Class Member

19

seeks to contact and the telephone number the Class Member wishes to call.

20

8. Attorneys may request to schedule a Legal Call in a Phone Room through the

on-site facilitators at each Facility or other Facility staff. Such requests shall

21

be granted within the same time limits that apply to Class Member requests

22

for Phone Room access as set forth in Paragraph E.5 above. Further delays

may be justified by extraordinary circumstances, but shall in all cases be

23

documented and reported to ICE.

24

9. The Facilities’ advance vetting and scheduling of call requests shall be

performed as follows:
25
i. Advance vetting shall be limited to internet searches. Facilities shall

26

not directly contact the individual/entity sought to be contacted in

27

advance of the call, except to contact an attorney who requests to

schedule a call with a Class Member.

28

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ii. If an attorney requests to schedule a call with a Class Member, the
1
Facilities shall coordinate with the attorney to schedule the call. For

2

other calls, Facilities do not have to coordinate advance scheduling

3

with call recipients. The Facilities shall, however, honor reasonable

written requests for specific times for phone room calls (e.g., detainee

4

asks to make call after 3:30, when witness finishes work shift) when

5

made with sufficient advance notice.

10. Facilities may do on-the-spot vetting in the presence of the Class Member

6

caller to verify the call recipient and to confirm that the recipient is willing to

7

take the call. The officer shall not reveal Class Members’ custody status or

location as part of the vetting.
8
11. If there is no answer, Class Members shall be permitted to leave voicemail

9

messages from Phone Room phones. If the call recipient has an automated

10

voicemail tree, Class Members shall be permitted to navigate that system to

reach their intended call recipient, including making additional attempts if

11

they are unsuccessful in their navigation of the system the first time.

12

12. Should requests for access to the Phone Rooms overwhelm availability, ICE

may charge a non-indigent Class Member a nominal fee for Phone Room use

13

to call recipients that are not on the Free Call platforms or database described

14

in paragraphs A.1 and A.2. Such fees shall not exceed the rates charged to

ICE by the then-existing ICE DTS provider, nor shall they exceed then-

15

applicable FCC guidance regulating inmate telephone services.

16

F. Messaging

17

1. At a minimum, ICE shall continue to provide the same messaging services at

Mesa Verde as are currently in existence.
18
2. RCCC, Yuba, and Contra Costa shall deliver legally-related messages, which

19

will not be confidential and may be primarily through an email-based system,

20

within 24 hours.

3. Emergency messages and urgent attorney messages shall be delivered as soon

21

as possible, but in no case more than six Facility waking hours after receipt.

22

G. On-Site Facilitators

23

1. ICE and/or the Facilities shall designate one or more telephone access

facilitators (“on-site facilitators”) for each Facility. There shall be one

24

facilitator on duty at each Facility Monday-Friday during normal business

25

hours. A back-up on-site facilitator shall be trained and Phone Room access

shall be provided by other Facility staff as needed to accommodate calls

26

within Facility waking hours that are outside of normal business hours.

27

2. The on-site facilitator’s primary duties shall be to ensure that class members

have adequate access to Legal Calls consistent with the requirements of this
28

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Agreement, including calls from the Housing Unit Phones, phone booth
1
phones, and Phone Room phones.

2

3. The individuals who act as on-site facilitators may be assigned to limited other

3

duties as long as such duties do not prevent the facilitators from facilitating

class members’ requests for Legal Calls in a timely manner.

4
H. Accommodations for Indigent Class Members

5
1. ICE shall provide accommodations for free Legal Calls to Indigent Class

6

Members.

7

2. Indigence shall be determined at the time of the initial call request, and each

subsequent request for additional time.

8

3. ICE shall provide accommodations to Indigent Class Members by either

9

allowing extra access to Phone Rooms or by providing phone credit for

Housing Unit Phones. Such phone credit shall be provided in amounts of at

10

least 30 minutes per request.

11

I. International Calling

12

1. ICE shall provide international call access for Legal Calls to Class Members,

during Facility waking hours, with advance notice and as set forth below.

13

2. If possible, international calling for Legal Calls will be made available

14

through a Facility Phone Room in accordance with the procedures for

accessing the Facility Phone Room in Section III.E.
15
3. If possible, free international calling for Legal Calls for Indigent Class

16

Members will be made available in accordance with the procedures for

17

Accommodations for Indigent Class Members in Section III.H.

4. If international calling for Legal Calls is not available through the Housing

18

Unit Phones or Facility Phone Rooms in accordance with the above

19

procedures, ICE shall accommodate requests for international Legal Calls in

the Facility through other means. This may include providing a cell phone

20

enabled with international calling through visiting ICE agents. If such other

21

means are required, ICE will accommodate requests for international Legal

Calls within no more than 72 hours of the request and will allow Indigent
22
Class Members access to free international Legal Calls through these alternate

23

means.

24

5. On the rare occasion that a Class Member presents a compelling need for

international Legal Call access outside of facility waking hours (e.g. to contact

25

a business or agency within country business hours that do not overlap with

26

facility waking hours), ICE shall make reasonable accommodations to

facilitate the Class Member’s timely communication with that entity.

27

J. Three Way Calling

28
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1. Upon request based upon a stated need, such as needing an interpreter to join
1
a call, ICE shall facilitate three-way calls in the Facility where the detainee is

2

housed or at the nearest ICE field office. ICE shall attempt to accommodate

3

such calls at the Facility, if possible, before transporting a Class Member to

the field office for such a call.

4
K. Notice to Plaintiff Class Members of Telephone Options

5
1. ICE and the Facilities shall ensure that Class Members are informed that they

6

must contact an ICE officer or a Facility staff member (such as the on-site

7

facilitator or the housing unit officer) if they have difficulty making a Legal

Call.

8

2. An instruction sheet shall be printed and posted in at least English and

9

Spanish, explaining all telephone access options, how to use the telephones

and platforms available to ICE detainees, and how to make additional requests

10

for telephone access, in clear, step-by-step instructions. The instruction sheet

11

shall be posted in English and Spanish near the Facility phones. ICE and the

Facilities shall instruct their officers to show the instruction sheet to any Class
12
Member who requests assistance with making phone calls and explain its

13

provisions.

14

3. Plaintiffs agree to produce a video that conforms to Americans with

Disabilities Act standards, with content and format to be approved by ICE, to

15

explain telephone access options available to Class Members. This video shall

16

be shown regularly in the Facilities, such that newly-admitted Class Members

are generally shown the video within one week of arrival.

17

L. Accommodations for Language Minorities

18
1. Facilities shall, if local resources are not adequate or available, use a language

19

line to provide interpretation of telephone materials and instructions upon the

20

request of any Class Member who is unable to read English or Spanish, not to

include a full translation of the detainee handbook.

21

2. ICE shall post a notice near the Housing Unit Phones in the Facilities in the

22

ten written languages most commonly used by respondents in the San

Francisco Immigration Court, instructing individuals to ask the facilitator or
23
housing unit officer for interpretation of telephone access instructions and

24

assistance accessing telephones. The speed dial code for the ACLU of

25

Northern California shall be included on this notice as a resource for reporting

problems obtaining telephone access.

26

3. Class members attempting to call individuals who do not speak English and

27

do not understand the prompts to accept a call from the Facility shall be

28
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provided access to Phone Room calls in accordance with the Phone Room
1
request process described in Section III.E.

2 IV. IMPLEMENTATION AND OVERSIGHT

3

A. Contracts with Facilities

4

1. The terms of this Agreement that describe requirements to be fulfilled by

Facilities alone or in conjunction with ICE shall be specified in contracts
5
between ICE and the Facilities.

6

2. ICE shall complete the contracting process and implement the requirements of

7

the Agreement within one year of the Agreement’s Effective Date. However,

to the extent compliance with a particular requirement of the Agreement is

8

impracticable (as that term is defined under federal common law),

9

Defendants’ failure to implement that requirement will not be a violation of

the Agreement.

10

3. Within 30 days of determining it will not complete a contract with a Facility

11

and at least 60 days prior to transferring class members from that Facility, in

anticipation of contract cancellation, Defendants shall notify Class Counsel
12
and the Parties shall meet and confer to provide adequate telephone access to

13

the affected Class Members in the counties covered by this Agreement,

14

possibly to include modifying the Agreement. If the Parties are unable to

reach agreement, they shall refer the dispute to this Agreement’s alternative

15

dispute resolution process under the terms of the existing Agreement.

16

B. Compliance with contract terms shall be monitored by ICE Contracting Officer’s

Representative (COR) and Contracting Officer’s Technical Representative (COTR),

17

as well as by other ICE personnel visiting the facilities, who will report

18

compliance/non-compliance to the COR/COTR. Failure to meet Settlement terms by

the Facilities shall be treated as a contract deficiency and addressed through the cure
19
process used by CORs/COTRs.

20

C. ICE shall require training of all local ICE personnel with duties related to detention

21

management and oversight as well as Facility staff whose duties include supervising

detainees or responsibilities related to detainee phone access in the Facilities. This

22

training shall include the requirements of this Agreement, applicable ICE detention

23

standards for telephone access, and the policies and procedures for implementation of

this Agreement at the Facility/ies relevant to the particular individuals being trained.

24

D. Within 180 days of the Agreement’s Effective Date, ICE shall modify forms used

25

during weekly Facility Liaison Visits and the annual ERO Detention Management

Division (G324A) audit (currently carried out by the Nakamoto Group, Inc.) to

26

evaluate compliance with each of the following:

27

1. When a detainee requests a direct or free Legal Call to an attorney, court,

or government agency or demonstrates a compelling need for other direct
28

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or free calls, access is granted within 24 hours of the request and
1
ordinarily within 8 facility waking hours. Further delays may be justified

2

by extraordinary circumstances.

3

2. The facility documents and reports to ICE/ERO any delays in responding

to requests for free or direct Legal Calls beyond 8 facility waking hours.

4

3. Detainees are provided private settings for Legal Calls such that calls

5

cannot be overheard by officers, other staff, or other detainees.

4. The facility has a system for taking and delivering telephone messages to

6

detainees, including but not limited to attorney messages, other messages

7

related to a detainee’s legal case, and emergency messages, and ensures

the timeliness of such message delivery.
8
5. The facility provides translation and interpretation services to detainees

9

who are unable to read written telephone access rules in the languages

10

provided.

6. Detainees in segregation or other environments with limited physical

11

access to telephones have reasonable and equitable access to telephones

12

during waking hours (i.e., they can request telephone calls and receive

them in a timely manner).

13

14 V. ENFORCEMENT AND MONITORING

15

A. Plaintiffs’ counsel shall be provided with the following records within 45 days of the

Agreement’s Effective Date or 45 days of finalizing the particular record, whichever

16

is later, to the extent such records are or were created after November 19, 2015,

17

through the termination of this Agreement:

1. Amendments/modifications that relate to telephone access or other issues
18
outlined in this Agreement to Facility contracts to which ICE is a party or

19

authorized rider for Mesa Verde, RCCC, Contra Costa, and Yuba;

20

2. Amendments, modifications, or new contracts for ICE Detainee Telephone

Service to the extent they are implemented at Mesa Verde (i.e., the contract

21

currently held by Talton);

22

3. Any new contract for the Contra Costa jail account/phone management

system, once awarded;

23

4. Any changes to Facility policies related to telephone access;

24

5. Any modified templates or forms of internal compliance instruments,

worksheets, inspection reports, and similar documents that relate to telephone
25
standards, telephone access, and/or the terms of this Agreement; and

26

6. Any revised orientation materials related to telephone access (unless Plaintiffs

27

are involved in drafting orientation materials and therefore already have

copies of the final orientation materials).

28

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B. To the extent class members are relocated to different facilities within Contra Costa,
1
Yuba, Sacramento or Kern County for more than 10 days, ICE shall meet and confer

2

with Class Counsel to agree upon facility-specific provisions that may be necessary to

3

effectuate the intent of this Agreement at the different facility.

C. During the terms of this Agreement, Class Counsel shall be provided with the

4

following records:

5

1. Any Contract Discrepancy Reports (CDR) issued by the COTR to one of the

four detention service providers concerning a facility’s failure to correct a

6

deficiency related to a provision of this Agreement.

7

2. The annual inspection report for telephone access by February 15th of the

calendar year following the inspection of each Facility.
8
3. Records reflecting notifications from the Facilities to ICE of the Facilities’

9

failure to accommodate a request for Phone Room access within 24 hours or

10

phone booth access within 2 hours.

D. In addition, on request, Class Counsel shall be provided with the following

11

documents covering a specified future month from a specified facility selected by

12

Class Counsel, not to exceed six selections a year:

1. Detainee kites and grievances to ICE relating to telephone access (including

13

responses); and

14

2. Weekly Telephone Serviceability Worksheets regarding that Facility.

E. ICE shall continue to conduct internal testing of Housing Unit Phones in accordance

15

with its current telephone serviceability report procedures and any changes that are

16

adopted pursuant to section IV.D of this Agreement.

F. ICE shall permit Class Counsel, with reasonable advance notice, to conduct
17
interviews with Class Members once per year per Facility. ICE shall ensure that

18

Facilities accommodate these interviews by providing Class Members a convenient

19

way to indicate their interest in participating in the interviews and facilitating group

or individual meetings between Class Counsel and willing Class Member

20

participants. These interviews are in addition to, not a substitute for, any interviews

21

that Class Counsel may schedule using each Facility’s normal attorney meeting

procedures.
22

23 VI. DISPUTE RESOLUTION PROCEDURES; CONTINUING JURISDICTION

24

A. The Court shall retain jurisdiction to supervise the implementation of this

Agreement and to enforce its terms, and the terms of this Agreement shall be
25
incorporated into the Order of the Court approving the Agreement.

26

B. The parties agree that the Court will not be asked to exercise jurisdiction to

27

supervise the implementation of this Agreement or to enforce its terms until

exhaustion of the following dispute resolution process:
28

Settlement Agreement and Release-16

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 18 of 47

1. Should Class Counsel believe in good faith that Defendants are engaging in a
1
pattern or practice of non-compliance with requirements of this Agreement at

2

a specific Facility or Facilities, Class Counsel shall promptly notify counsel

3

for Defendants, in writing, of the specific grounds upon which non-

compliance is alleged. If Class Counsel so request after providing notice of

4

noncompliance with respect to a specific Facility, Defendants shall

5

commence retention within three business days (72 hours, not including

weekends and holidays) of the detainee kites and grievances to ICE from that

6

Facility regarding telephone access, and the detainee kites and grievances to

7

that Facility regarding telephone access, including Class Member requests

contemplated under Section III of this Agreement. Document retention shall
8
continue for fourteen (14) days. Defendants’ counsel shall forward the

9

documents to Class Counsel after a reasonable period of internal processing,

10

not to exceed five business days, not including weekends and holidays, after

the end of the 14-day retention period.

11
2. Within thirty (30) calendar days after receipt of the notice from Class

12

Counsel, counsel for Defendants shall notify Class Counsel of Defendants’

13

position and any action it has taken or intends to take in connection

therewith. The parties shall negotiate in good faith in an effort to resolve any

14

remaining disputes. The parties agree that this negotiation period will be

15

considered exhausted if the parties jointly determine that negotiations have

reached an impasse, or if either party invokes the formal meet-and-confer

16

process under paragraph 3 of Section VI.B. of the Agreement.

17

3. If any dispute cannot be resolved informally under paragraphs 1 or 2 of

18

Section VI.B. of the Agreement, counsel for either party may notify counsel

for the opposing party by letter and request that counsel meet and confer.
19
The parties shall meet within ten (10) calendar days of such notice in an

20

attempt to arrive at an amicable resolution of the dispute.

21

4. The parties may refer any unresolved dispute to Magistrate Judge Ryu for

mediation. If Magistrate Judge Ryu is no longer available or does not
22
consent to serve as mediator, the parties may refer the unresolved dispute to

23

another magistrate judge in the Northern District of California for mediation,

24

if the parties mutually agree on the mediator and such mediator consents. If

the dispute has not been resolved through mediation within 14 days, counsel

25

may mutually agree to continue mediation or counsel may seek to enforce the

26

Agreement through a motion in district court. Additionally, if the parties

cannot agree on a mediator, if no mutually-agreed-on mediator consents, or if
27

28
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the parties mutually agree to bypass mediation, counsel may seek to enforce
1
the Agreement through a motion in district court.

2

5. If the parties do not reach resolution under the procedures of Paragraphs 1-4

3

of Section VI.B. of the Agreement, either party may then file a motion

4

requesting that the district court resolve the dispute.

6. The parties agree that the mediation process described in Section VI.B of the
5
Agreement shall be conducted confidentially and that no public disclosure

6

shall be made regarding the mediation process at any time before, during, or

7

after the mediation process, except that the final result of the mediation may

be disclosed. All documents and information disclosed by either party during

8

the mediation process shall not be admissible in any judicial proceeding. All

9

statements or conclusions of the mediator shall not be admissible in any

subsequent judicial proceeding.

10

C. The parties agree that any action or proceeding to enforce the terms of this

11

Agreement shall be brought exclusively in the United States District Court for the

12

Northern District of California. The Court in this proceeding shall have the power

to award such relief and issue such judgments as the Court deems proper and

13

appropriate.

14

15 VII. TERMS OF ORDER FOR NOTICE, HEARING AND FINAL JUDGMENT

16
A. Concurrently with their filing of this Agreement, Class Counsel shall apply to the

17

Court for Preliminary Approval of the Settlement provided for in this Agreement

18

and entry of a Preliminary Approval Order. Such Preliminary Approval will seek

approval of a Notice to the Class substantially in the form appended hereto as

19

Exhibit B, as well as a finding that the following satisfies the publication

20

requirements of Rule 23 of the Federal Rules of Civil Procedure: Within ten (10)

business days of the date of the Preliminary Approval, (i) posting the Notice to the

21

Class and this Settlement Agreement in appropriate places on the ICE public

22

website; (ii) providing the Notice to the Class and this Agreement to immigration

attorneys in the San Francisco Bay Area through the local American Immigration
23
Lawyers’ Association and National Lawyers Guild listservs; (iii) providing the

24

Notice to the Class and this Agreement in appropriate places on the website of the

25

ACLU of Northern California; (iv) posting the Notice to the Class in all housing

units in the Facilities where Class Members are housed, in an area prominently

26

visible to immigration detainees; and (v) providing individual copies of the Notice

27

to the Class to any Class Members who are housed in segregation, medical,

holding, or other specialized units with restricted access to common areas during

28

Settlement Agreement and Release-18

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 20 of 47

Facility waking hours. The Notice to the Class and this Agreement shall remain
1
posted, and shall be maintained or replaced with new copies as needed, until the

2

Court issues an order finally approving or rejecting the Settlement. Class Counsel

3

shall be responsible for meeting the notice requirements listed in (ii)-(iii) above

and ensuring maintenance of such notice, and Defendant ICE shall be responsible

4

for meeting the notice requirements listed in (i), (iv) and (v) above and ensuring

5

maintenance of such notice. The parties shall request that Class Members be

provided at least forty-five (45) days to submit objections to the Court after the

6

Notice to the Class is posted and distributed.

7

B. If the Settlement contemplated by this Agreement is approved by the Court,

8

counsel for the parties shall request that the Court enter a Final Judgment

substantially in the form appended hereto as Exhibit C.
9

C. Within ten (10) business days following the Effective Date of Settlement, ICE shall

10

provide the Notice of Final Settlement substantially in the form appended hereto as

11

Exhibit D by posting it in all housing units in the Facilities where Class Members

are housed, in an area prominently visible to immigration detainees, as well as
12
providing individual copies of the Notice to the Class to any Class Members who

13

are housed in segregation, medical, holding, or other specialized units with

14

restricted access to common areas during facility waking hours. The Notice of Final

Settlement shall remain posted, and shall be maintained or replaced with new

15

copies as needed, until the obligations of this Agreement are terminated.

16

D. ICE shall post a Spanish language translation of both the Preliminary Notice and

17

the Final Notice to the Class. Should Class Counsel provide to ICE translations in

other languages, ICE shall post a notice informing Class Members that such

18

translations are available. Class Counsel shall provide such notices in sufficient

19

time to allow ICE to meet the posting requirements in Sections VII.A and C. of the

Agreement.
20

21
VIII. EFFECTIVE DATE OF SETTLEMENT; TERMINATION
22

23

A. The Effective Date of this Agreement shall be the date when all of the following

24

shall have occurred: (a) entry of the Preliminary Approval Order; (b) approval by

the Court of this Agreement, following notice to the Class and a fairness hearing, as

25

prescribed by Rule 23 of the Federal Rules of Civil Procedure; and (c) entry by the

26

Court of Final Judgment, in all material respects in the form appended hereto as

Exhibit C.
27

28
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B. In the event that the Court does not approve the Agreement, or the Court’s approval
1
of the Agreement or the Final Judgment is reversed, vacated, or terminated on

2

appeal, the parties’ good-faith adherence to the terms of this Agreement prior to

3

said reversal, vacatur, or termination shall not be considered unlawful.

4

C. This Agreement is subject to and contingent upon Court approval under Rule 23(e)

of the Federal Rules of Civil Procedure. Defendants’ Counsel and Class Counsel

5

shall have the right to terminate this Agreement by providing written notice of their

6

election to do so (“Termination Notice”) to all other parties hereto within thirty

(30) days of (a) the Court’s declining to enter the Preliminary Approval Order or

7

modifying that Preliminary Approval Order in any material respect; (b) the Court’s

8

declining to approve the Settlement embodied in this Agreement or any material

part of it; (c) the Court’s declining to enter the Final Judgment or modifying the

9

Final Judgment in any material respect; or (d) the Court of Appeals or the United

10

States Supreme Court’s reversing, vacating, or modifying in any material way the

Final Judgment.
11

E. Except as otherwise provided herein, in the event the Settlement is terminated or
12
modified in any material respect or fails to become effective for any reason, then

13

the Settlement shall be without prejudice and none of its terms shall be effective or

14

enforceable; the parties to this Agreement shall be deemed to have reverted to their

respective status in the Action as of the date and time immediately prior to the

15

execution of this Agreement; and except as otherwise expressly provided, the

16

parties shall proceed in all respects as if this Agreement and any related orders had

not been entered. In the event the Settlement is terminated or modified in any

17

material respect, the parties shall be deemed not to have waived, not to have

18

modified, or not be estopped from asserting any additional defenses or arguments

available to them.
19

20
IX. TERMINATION OF OBLIGATIONS
21
Unless earlier terminated by operation of Section VIII, the obligations of this Agreement shall 22 terminate within five (5) years of the Effective Date.
23
24 X. NO ADMISSION OF WRONGDOING

25

A. This Agreement, whether or not executed, and any proceedings taken pursuant to it:

26

1.

shall not be construed to waive, reduce, or otherwise diminish the authority of

27

the Defendants to enforce the laws of the United States against Class Members,

28
Settlement Agreement and Release-20

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 22 of 47

consistent with the Constitution and laws of the United States, and applicable
1
regulations;

2

2.

shall not be offered or received against the Defendants as evidence of, or

3

construed as or deemed to be evidence of, any presumption, concession, or

4

admission by any of the Defendants of the truth of any fact alleged by the

Plaintiffs or the validity of any claim that had been or could have been asserted

5

in the Action or in any litigation, or the deficiency of any defense that has been

6

or could have been asserted in the Action, or of any liability, negligence, fault,

or wrongdoing of the Defendants; or any admission by the Defendants of any

7

violations of, or failure to comply with, the Constitution, laws or regulations;

8

and

9

3.

shall not be offered or received against the Defendants as evidence of a

presumption, concession, or admission of any liability, negligence, fault, or

10

wrongdoing, nor shall it create any substantive rights or causes of action against

11

any of the parties to this Agreement, in any other civil, criminal, or

administrative action or proceeding, other than such proceedings as may be
12
necessary to effectuate the provisions of this Agreement; provided, however,

13

that if this Agreement is approved by the Court, Defendants may refer to it and

14

rely upon it to effectuate the liability protection granted them hereunder.

15
XI.
16

ATTORNEYS’ FEES

17 As set forth below, within 65 days of the Effective Date, Defendants shall pay to Class Counsel the sum of $ 405,000 to settle and resolve Plaintiffs’ claims to attorneys’ fees and costs, if such
18 award is approved by the Court.

19

A. The parties agree to the “Attorneys’ Fee Settlement Amount” of $405,000, to avoid

20

further litigation and costs associated litigating a fee and cost request and to avoid

21

the risks attendant to such proceedings. Plaintiffs shall file a motion for fees under

Fed. R. Civ. P. 23(h) and 54(d)(2)).
22

B. Defendants agree not to oppose a motion seeking a fee award of $405,000 or less.
23

C. If for any reason the Court awards an amount in excess of $405,000, Plaintiffs and

24

Class Counsel expressly disclaim any and all right to collect the amount that

25

exceeds $405,000 from any person or entity, and agree, upon demand, to execute a

release of any person’s or entity’s obligation to pay such sums. In the event the
26
Court awards Class Counsel less than $405,000, this Settlement Agreement shall

27

28
Settlement Agreement and Release-21

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 23 of 47

remain in full force and effect. Nothing in this Agreement waives or prevents
1
Plaintiffs and Class Counsel from appealing an award of less than $405,000.

2

D. Subject to the foregoing provisions, Defendants shall deliver the Attorneys’ Fee

3

Settlement Amount to Class Counsel by direct wire transfer into Class Counsel’s

4

designated account. Class Counsel shall provide to Defendants all information

necessary to accomplish the direct wire transfer into that account within five days

5

of the Effective Date. Plaintiffs and Class Counsel acknowledge that payment of the

6

Attorneys’ Fee Settlement Amount by Defendants or any of them in accordance

with the wire instructions shall resolve all of Defendants’ liability for such amount.

7
E. Class Counsel shall be fully responsible for the allocation and payment of the

8

Attorneys’ Fee Settlement Amount among themselves.

9

F. Defendants’ payment of the Attorneys’ Fee Settlement Amount shall satisfy any

10

claims by Plaintiffs’ Counsel and/or Class Counsel for attorney fees and costs

related to and for the Action, including any fees and costs that may be incurred by

11

Plaintiffs’ Counsel and/or Class Counsel in the course of monitoring the

12

implementation of this Agreement (except as set forth in Paragraph G). Plaintiffs,

Plaintiffs’ Counsel, and Class Counsel, and their heirs, executors, administrators,

13

representatives, attorneys, predecessors, successors, assigns, agents, affiliates, and

14

partners, and any persons they represent, by operation of any final judgment entered

by the Court, fully, finally, and forever release, relinquish, and discharge the
15
Defendants of and from any and all claims for attorney fees and costs related to and

16

for the Action, including any fees and costs that may be incurred in the course of

17

monitoring the implementation of this Agreement (except as set forth in Paragraph

G).

18

G. In the event that Class Counsel seek to enforce the terms of the Agreement pursuant

19

to Section VI.C., nothing in this Agreement shall be interpreted as precluding

20

Plaintiffs from seeking attorneys’ fees and costs solely for such enforcement action.

21

H. If either party terminates the Agreement under Section VIII.C because the Court of

Appeals or the United States Supreme Court reversed, vacated, or modified in any

22

material way the Final Judgment after the Effective Date, Plaintiffs agree that Class

23

Counsel shall return the Attorneys’ Fee Settlement Amount, plus any interest

earned, to Defendants upon final resolution of the appeal. Final resolution of the

24

appeal occurs when all appellate remedies, including petitions for rehearing,

25

petitions for rehearing en banc, and petitions for certiorari or any other form of

review, have been finally disposed of in a manner that allows for termination of the
26
Agreement.

27

28
Settlement Agreement and Release-22

Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 24 of 47

XII. ADDITIONAL PROVISIONS
1

2

A. This Agreement, and the obligations incurred herein, shall be in full and final

3

disposition of the Action with prejudice, including any and all Settled Claims against

Defendants. On the Effective Date, Plaintiffs and Class Members shall be deemed to

4

have fully, finally, and forever released, relinquished, and discharged Defendants of

5

and from any and all Settled Claims in accordance with Part II.

6

B. All of the exhibits attached hereto are hereby incorporated by reference as though

fully set forth herein.

7

C. This Agreement may not be modified or amended, nor may any of its provisions be

8

waived except by a writing signed by all parties hereto or their successors-in-interest.

9

D. The waiver by one party of any breach of this Agreement by any other party shall not

10

be deemed a waiver of any other prior or subsequent breach of this Agreement.

11

E. This Agreement and its exhibits constitute the entire agreement among the parties

hereto concerning the Settlement of the Action, and no representations, warranties,

12

or inducements have been made by any party hereto other than those contained and

13

memorialized in such documents.

14

F. This Agreement may be executed in one or more counterparts. All executed

counterparts and each of them shall be deemed to be one and the same instrument

15

provided that counsel for the parties to this Agreement shall exchange among

16

themselves original signed counterparts.

17

G. This Agreement shall be binding upon, and inure to the benefit of, the successors and

assigns of the parties hereto.
18

H. This Agreement shall not be construed more strictly against one party than another

19

merely by virtue of the fact that it, or any part of it, may have been prepared by

20

counsel for one of the parties, it being recognized by the parties that this Agreement

is the result of negotiations between the parties and that all parties have contributed
21
substantially and materially to the preparation of this Agreement.

22

I. All counsel and any other person executing this Agreement and any of the exhibits

23

hereto, or any related settlement documents, warrant and represent that they have the

full authority to do so and that they have the authority to take appropriate action
24
required or permitted to be taken under the Agreement to effectuate its terms.

25
J. Class Counsel and Defendants’ Counsel agree to cooperate fully with one another in

26

seeking Court approval of this Agreement and to promptly agree upon and execute

27

all such other documentation as may be reasonably required to obtain final approval

by the Court of the Settlement.

28

Settlement Agreement and Release-23

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Case 3:13-cv-05878-EMC Document 262-2 Filed 06/13/16 Page 26 of 47

 
 Case 3:13-cv-05878-EMC Document 292 Filed 04/23/19 Page 1 of 4

1

CHRIS CRUZ (SBN 228802)

2 DEREK WETMORE (SBN 291600)

JAZMIN HOLMES (SBN 295312)

3 YEKATERINA L. REYZIS (317763)

ARIEL WINAWER (SBN 317821)

4 ORRICK, HERRINGTON & SUTCLIFFE LLP

405 Howard Street 5 San Francisco, CA 94105

6 Telephone: (415) 773-5700 Facsimile: (415) 773-5759

7 Email: ccruz@orrick.com

dwetmore@orrick.com

8

SEAN RIORDAN (SBN 255752)

9 ANGÉLICA H. SALCEDA (SBN 296152)

AMERICAN CIVIL LIBERTIES UNION FOUNDATION 10 OF NORTHERN CALIFORNIA

11

39 Drumm Street San Francisco, CA 94111

12 Telephone: (415) 621-2493 Facsimile: (415) 255-8437

13 Email: sriordan@aclunc.org asalceda@aclunc.org

14

15 Attorneys for Plaintiffs

16 Attorneys for Defendants listed on following page

17

18

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO DIVISION

20 AUDLEY BARRINGTON LYON, JR., ET AL.,

21 ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

22

PLAINTIFFS,

23

V.

UNITED STATES IMMIGRATION AND

24 CUSTOMS ENFORCEMENT, ET AL.,

DEFENDANTS. 25

Case No.: 13-cv-05878-EMC
JOINT STIPULATION AND [PROPOSED] ORDER EXTENDING SETTLEMENT AGREEMENT

Judge:

Hon. Edward M. Chen

26

27

28

30

JOINT STIPULATION
1

Case 3:13-cv-05878-EMC Document 292 Filed 04/23/19 Page 2 of 4

1 JOSEPH H. HUNT

Assistant Attorney General, Civil Division 2 WILLIAM C. PEACHEY

3 Director, District Court Section GISELA A. WESTWATER

4 Assistant Director, District Court Section

BRIAN C. WARD 5 Senior Litigation Counsel

LAUREN C. BINGHAM 6 Trial Attorney

7 KATHERINE J. SHINNERS Senior Litigation Counsel

8 Office of Immigration Litigation

Civil Division 9 U.S. Department of Justice

10

P.O. Box 868, Ben Franklin Station Washington, D.C. 20044

11 Telephone: (202) 598-8259 Email: Katherine.J.Shinners@usdoj.gov

12

Attorneys for Defendants 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

JOINT STIPULATION
2

Case 3:13-cv-05878-EMC Document 292 Filed 04/23/19 Page 3 of 4

1

2

Plaintiffs Audley Barrington Lyon, Jr., José Elizandro Astorga-Cervantes, and Nancy Neria-

3 Garcia, on behalf of themselves and all class members (collectively, “Plaintiff Class”), and Defendants

4 U.S. Immigration and Customs Enforcement (“ICE”), Ronald D. Vitiello in his official capacity as

5 Acting Director of ICE, the U.S. Department of Homeland Security, Kevin McAleenan in his official

6 capacity as Acting Secretary of Homeland Security, and Erik Bonnar in his official capacity as Acting 7 Field Office Director for ICE’s San Francisco Field Office (collectively, “Defendants”),1 by and through

8 their counsel of record, respectfully submit this joint stipulation and proposed order concerning the

9 extension of the executed Settlement Agreement and Release (“Settlement Agreement”), which was

10 approved by this Court on November 18, 2016 (ECF No. 286).

11

In approving the Settlement Agreement, the Court retained jurisdiction to supervise the

12 implementation of the Settlement Agreement and to enforce its terms. Settlement Agreement § VI.A.

13

Pursuant to Sections VIII and IX of the Settlement Agreement, Defendants’ obligations under the

14 Settlement Agreement are in effect from November 18, 2016 to November 18, 2021.

15

Since February 21, 2018, the Parties have engaged in a series of letters, emails, telephonic

16 discussions, and meet and confers, as part of the dispute resolution procedure under Section VI.B.1-3 of

17 the Settlement Agreement, to discuss the Plaintiff Class’s concerns regarding the status of Defendants’

18 full implementation of certain obligations under the Settlement Agreement.

19

Pursuant to the Parties’ discussions and meet and confer process, the Parties jointly stipulate

20 under Section XII.C of the Settlement Agreement that Section IX of the Settlement Agreement is

21 amended as follows: Defendants’ obligations only with respect to Yuba County Jail in Yuba County,

22 California (“Yuba”), and the Plaintiff Class’s rights under the Settlement Agreement only with respect

23 to Yuba, will terminate on November 18, 2022. All other obligations under the Settlement Agreement

24 will terminate on November 18, 2021.

25

Counsel for Plaintiff Class certifies that the content of this document is acceptable to counsel for

26 Defendants and said counsel has provided authority to affix her electronic signature.

27 1Pursuant to Federal Rule of Civil Procedure 25(d), Ronald D. Vitiello, Acting Director of ICE, Kevin
28

30

JOINT STIPULATION
3

Case 3:13-cv-05878-EMC Document 292 Filed 04/23/19 Page 4 of 4

1

2

Respectfully submitted,

3

By: /s/ Angélica Salceda

4

Angélica Salceda Attorney for Plaintiffs

5

6 By: /s/ Katherine J. Shinners

7

Katherine J. Shinners

Attorney for Defendants 8

9

10

Att

ORDER 11

Pursuant to stipulation, it is so ordered. 12

13

Date: _________________

14

___________________________________ Hon. Edward M. Chen

15

16

17

18

19

20

21

22

23

24

25

26

27 McAleenan, Acting Secretary of DHS, and Erik Bonnar, Acting Field Office Director for ICE’s, are
28 automatically substituted for their predecessors to those offices as official-capacity Defendants.

30

JOINT STIPULATION
4

 
 Case 3:13-cv-05878-EMC Document 308 Filed 12/13/19 Page 1 of 5

1 DEREK WETMORE (STATE BAR NO. 291600)
YEKATERINA REYZIS (STATE BAR NO. 317763) 2 ARIEL WINAWER (STATE BAR NO. 317821)
ORRICK, HERRINGTON & SUTCLIFFE LLP 3 405 Howard St.
San Francisco, California 94105 4 Telephone: +1-415-773-5700
Facsimile: +1-415-773-5759 5

6

SEAN RIORDAN (STATE BAR NO. 255752) ANGELICA SALCEDA (STATE BAR NO. 296152)

7 AMERICAN CIVIL LIBERTIES UNION (ACLU) 39 Drumm St.

8 San Francisco, CA 94111

Telephone: +1-415-621-2493

9 Facsimile: +1-415-255-1478

10 Attorneys for Plaintiffs

11 LAUREN BINGHAM KATHERINE J. SHINNERS
12 DHRUMAN Y. SAMPAT BRIAN WARD
13 U.S. Department of Justice Office of Immigration Litigation
14 District Court Section P.O. Box 868
15 Ben Franklin Station Washington, D.C. 20530
16 Telephone: 202-616-4458

17 Attorneys for Defendants

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20

OAKLAND DIVISION

21

22 AUDLEY BARRINGTON LYON, JR., et al., Case No. 3:13-cv-05878-EMC

23

Plaintiffs,

24

v.

25

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

26

Defendants.

27

STIPULATION AND [PROPOSED] ORDER REGARDING DECEMBER 5, 2019 MEDIATION
CLASS ACTION

28
STIPULATION AND [PROPOSED] ORDER RE DECEMBER 5, 2019 MEDIATION 3:13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 308 Filed 12/13/19 Page 2 of 5

1

WHEREAS, on December 5, 2019, Plaintiffs Audley Barrington Lyon, Jr., et al.

2 (“Plaintiffs”) and Defendants United States Immigration and Customs Enforcement, et al.

3 (“Defendants”) (Plaintiffs and Defendants are collectively the “Parties”), by and through their

4 respective counsel of record engaged in mediation with Magistrate Judge Donna Ryu (“Judge

5 Ryu”) in an effort to resolve disputes concerning the Lyon Settlement Agreement (“Lyon

6 Agreement”) at Yuba County Jail (“YCJ”);

7

WHEREAS, Defendants represent that the backlog in granting detainees’ requests for

8 legal calls has been eliminated entirely at YCJ as of the date of the mediation, December 5, 2019,

9 through a series of new measures described below as well as through the temporary measure of

10 transporting detainees to the San Francisco Field Office to make legal calls from December 2 – 4,

11 2019;

12

WHEREAS, Defendants represent that new measures in compliance with the Lyon

13 Agreement have been implemented to reduce any backlog, including but not limited to returning

14 incomplete detainee call request forms, not scheduling detainee calls based on incomplete forms,

15 and on-the-spot vetting of detainee-requested legal calls by YCJ’s two facilitators; and

16

WHEREAS, the Parties agreed to increased information sharing to facilitate an

17 assessment of ongoing compliance with the Lyon Agreement in light of Defendants’ new

18 measures;

19

THEREFORE, the Parties by and through their counsel of record, hereby stipulate and

20 agree as follows:

21

1. Defendants shall revise the Legal Call Request Form for YCJ detainees to include,

22

among other things, the date and time a request is received;

23

2. Defendants shall revise the Legal Call Request Form to include written

24

notifications on the reverse side of the Legal Call Request Form that detainees

25

must complete and submit a separate request for each phone number a detainee

26

intends to call, that non-indigent detainees must first attempt to make legal calls to

27

non-attorneys from Housing Unit phones prior to requesting use of the private

28

phone room for non-attorney legal calls, that detainees must complete all fields in

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STIPULATION AND [PROPOSED] ORDER RE DECEMBER 5, 2019 MEDIATION 3:13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 308 Filed 12/13/19 Page 3 of 5

1

the Legal Call Request Form or the form will be returned for completion, and that

2

detainees should submit separate requests for use of the old-side Phone Booth

3

requiring only their name and A number, which will be accommodated separately

4

from Legal Call Requests to use the private phone room;

5

3. Defendants shall provide Plaintiffs a copy of the draft revised Legal Call Request

6

Form, including the written notifications to be printed on the reverse side of the

7

form, prior to finalizing and implementing the revised Legal Call Request Form;

8

4. Plaintiffs shall have three (3) business days after receipt to propose revisions to the

9

draft Legal Call Request Form prior to the Legal Call Request Form being

10

finalized and implemented;

11

5. Defendants and Plaintiffs shall negotiate in good-faith to reach an agreement

12

regarding the language to be included in the revised Legal Call Request Form;

13

6. Defendants shall translate the agreed-upon revised Legal Call Request Form into

14

Spanish and include the Spanish translation in the final form, such that the one

15

form provided to detainees is in both English and Spanish;

16

7. Defendants shall undertake best efforts to implement the revised Legal Call

17

Request Form at YCJ by January 2, 2020;

18

8. Defendants shall produce to Plaintiffs the following materials on a biweekly basis

19

for the period beginning January 2, 2020 and ending March 2, 2020 (the “Review

20

Period”):

21

a. The legal call log for YCJ ICE detainee legal calls from the private phone

22

room;

23

b. Excel spreadsheet(s) or similar document(s) tracking all YCJ detainee

24

requests for legal calls that are not granted, which shall include the reason

25

for not granting the request;

26

c. Copies of all Legal Call Request Forms for completed detainee legal calls;

27

d. Copies of all Legal Call Request Forms for all calls that are not granted on

28

one day of each week during the Review Period, to be designated by

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STIPULATION AND [PROPOSED] ORDER RE DECEMBER 5, 2019 MEDIATION 3:13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 308 Filed 12/13/19 Page 4 of 5

1

Plaintiffs, who will notify Defendants three (3) days in advance of each

2

such day; and

3

e. Updates regarding the installation of the New ICE Phone Lines at the YCJ

4

facility;

5

9. Defendants’ first production of the materials detailed in paragraph 8 shall be on

6

Thursday, January 23, 2020 and shall include relevant materials from the first two

7

weeks of the Review Period (January 2 through January 16, 2020);

8

10. Defendants’ productions shall continue biweekly on Thursdays with a final

9

production of Review Period material no later than March 9, 2020;

10

11. Defendants shall request from appropriate Yuba County personnel at least one day

11

per week of Global Tel-Link Corporation (“GTL”) telephonic records detailing all

12

detainee legal calls from the private phone room made or attempted on the selected

13

day;

14

12. Defendants shall produce to Plaintiffs’ counsel any GTL phone records it receives

15

from Yuba County during the Review Period;

16

13. Defendants shall facilitate a class counsel visit to YCJ in early 2020 using the

17

same process as other class counsel visits, such visit will be in addition to the

18

annual visit to which Plaintiffs’ counsel is entitled under Section V.F of the Lyon

19

Agreement; and

20

14. The Parties shall meet-and-confer at a mutually agreeable time on or shortly after

21

March 2, 2020, though the Parties may also meet-and-confer at an earlier time if

22

either Plaintiffs or Defendants request such an opportunity to discuss ongoing

23

implementation of the Agreement.

24 ////

25 ////

26 ////

27 ////

28 ////

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STIPULATION AND [PROPOSED] ORDER RE DECEMBER 5, 2019 MEDIATION 3:13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 308 Filed 12/13/19 Page 5 of 5

1 Dated: December 13, 2019 2

ORRICK, HERRINGTON & SUTCLIFFE LLP, AMERICAN CIVIL LIBERTIES UNION

3 By: /s/ Derek E. Wetmore
4
Attorneys for Plaintiffs 5
AUDLEY BARRINGTON LYON, JR., et al. 6

7 Dated: December 13, 2019 8

U.S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION

9

10

By: /s/ Lauren Bingham

11

Attorneys for Defendants

12

UNITED STATES IMMIGRATION AND

CUSTOMS ENFORCEMENT 13

14

15

[PROPOSED] ORDER

16

PURSUANT TO STIPUATION, IT IS SO ORDERED.

17 18 Dated: December ____, 2019

19

20

By: Hon. Donna M. Ryu

21

United States Magistrate Judge

22

23

24

25

26

27

28

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STIPULATION AND [PROPOSED] ORDER RE DECEMBER 5, 2019 MEDIATION 3:13-CV-05878-EMC

 
 Case 3:13-cv-05878-EMC Document 315 Filed 04/01/20 Page 1 of 4

1 DEREK WETMORE (STATE BAR NO. 291600)
YEKATERINA REYZIS (STATE BAR NO. 317763) 2 ARIEL WINAWER (STATE BAR NO. 317821)
ORRICK, HERRINGTON & SUTCLIFFE LLP 3 405 Howard St.
San Francisco, California 94105 4 Telephone: (415) 773-5700
Facsimile: (415) 773-5759 5

6

SEAN RIORDAN (STATE BAR NO. 255752) ANGELICA SALCEDA (STATE BAR NO. 296152)

7 AMERICAN CIVIL LIBERTIES UNION (ACLU) 39 Drumm St.

8 San Francisco, CA 94111 Telephone: (415) 621-2493
9 Facsimile: (415) 255-1478

10 Attorneys for Plaintiffs

11 LAUREN BINGHAM KATHERINE J. SHINNERS
12 DHRUMAN Y. SAMPAT BRIAN WARD
13 U.S. Department of Justice Office of Immigration Litigation
14 District Court Section 450 Fifth Street, N.W.
15 Washington, D.C. 20530

16 Attorneys for Defendants

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20

21 AUDLEY BARRINGTON LYON, JR., et al., Case No. 3:13-cv-05878-EMC

22

Plaintiffs,

23

v.

24

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

25

Defendants.

26

STIPULATION AND [PROPOSED] ORDER REGARDING MARCH 24, 2020 MEDIATION
CLASS ACTION

27

28
STIPULATION AND [PROPOSED] ORDER RE MARCH 24, 2020 MEDIATION 3:13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 315 Filed 04/01/20 Page 2 of 4

1

WHEREAS, on March 24, 2020, Plaintiffs Audley Barrington Lyon, Jr., et al.

2 (“Plaintiffs”) and Defendants United States Immigration and Customs Enforcement, et al.

3 (“Defendants”) (Plaintiffs and Defendants are collectively the “Parties”), by and through their

4 respective counsel of record engaged in mediation proceedings with Magistrate Judge Donna Ryu

5 (“Judge Ryu”) in an effort to resolve the ongoing disputes between the parties regarding the Lyon

6 Settlement Agreement (“Lyon Agreement”) at Yuba County Jail (“YCJ”);

7

WHEREAS, Defendants represent that one of the new phones in the phone room is

8 connected to the new ICE lines and is functioning. Therefore, the facilitator is now individually

9 dialing numbers on the phone request form for detainees using that particular phone.

10

WHEREAS, Defendants represent that an additional part is required to finalize the

11 second of the new phone lines and anticipates the part to arrive sometime between March 19 and

12 March 27, 2020. Once the part arrives, ICE will schedule the technician to complete the project

13 and finalize the second of the new phone lines.

14

WHEREAS, Defendants represent that the two new phone lines will assist in reducing

15 any backlog or delays for detainees to access legal calls.

16

WHEREAS, the Parties agreed to continued increased information sharing to facilitate an

17 assessment of ongoing compliance with the Lyon Agreement in light of Defendants’ installation

18 and completion of its new phone lines;

19

THEREFORE, the Parties by and through their counsel of record, hereby stipulate and

20 agree as follows:

21

1. Defendants shall produce to Plaintiffs the following materials on a biweekly basis for

22

the period beginning April 2, 2020 and ending June 2, 2020 (the “Review Period”):

23

a. The legal call log for YCJ detainee legal calls from the private phone room;

24

b. Excel spreadsheet(s) or similar document(s) tracking all YCJ detainee

25

requests for legal calls that are not granted, which shall include the reason

26

for not granting the request;

27

c. Copies of all Legal Call Request Forms for completed detainee legal calls;

28

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STIPULATION AND [PROPOSED] ORDER RE MARCH 24, 2020 MEDIATION 3:13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 315 Filed 04/01/20 Page 3 of 4

1

d. Copies of all Legal Call Request Forms for all calls that are not granted on

2

one day of each week during the Review Period, to be designated by

3

Plaintiffs who will notify Defendants (3) days in advance of each such day;

4

and

5

e. Updates regarding the installation of the new ICE Phone Lines at the YCJ

6

facility as they become available;

7

2. Defendants’ first production of the materials detailed in paragraph 1 shall be on

8

Thursday, April 23, 2020 and shall include relevant materials from the first two weeks

9

of the Review Period (April 2 through April 16, 2020);

10

3. Defendants’ production shall continue biweekly on Thursdays with a final production

11

no later than June 4, 2020.

12

4. Until the second new line is installed, Defendants shall request from appropriate Yuba

13

County personnel at least once per week Global Tel-Link Corporation (“GTL”)

14

telephonic records detailing all detainee legal calls from the private phone room made

15

or attempted;

16

5. Until the second new line is installed, Defendants shall produce to Plaintiffs’ counsel

17

any GTL phone records it receives from Yuba County during the Review Period;

18

6. Defendants shall produce to Plaintiffs’ counsel all phone records for the new phone

19

lines for the Review Period within seven days of those phone records becoming

20

available and continue producing the phone records through the Review Period.

21

7. The Parties shall meet-and-confer at a mutually agreeable time to identify and agree to

22

a date and time for Defendants to facilitate a class counsel tour and visit to YCJ in late

23

May or early June 2020, subject to the resolution of coronavirus concerns. Should a

24

class counsel tour and visit to YCJ be rendered impracticable in late May or early June

25

2020 due to the coronavirus pandemic, the Parties shall mutually agree to a date and

26

time for such tour and visit later in the year. Such visit will be in addition to the

27

annual visit to which Plaintiffs’ counsel is entitled under Section V.F. of the Lyon

28

Agreement; and

- 3 -

STIPULATION AND [PROPOSED] ORDER RE MARCH 24, 2020 MEDIATION 3:13-CV-05878-EMC

Case 3:13-cv-05878-EMC Document 315 Filed 04/01/20 Page 4 of 4

1

8. After Defendants’ last document production, the Parties shall meet-and-confer at a

2

mutually agreeable time on or before after June 15, 2020.

3

4 Dated: April 1, 2020
5
6

ORRICK, HERRINGTON & SUTCLIFFE LLP, AMERICAN CIVIL LIBERTIES UNION

7

By:

s/ Angelica Salceda

8

Attorneys for Plaintiffs

9

AUDLEY BARRINGTON LYON, JR., et al.

10

11

By: _ s/ Dhruman Y. Sampat 12

Attorneys for Defendants 13

UNITED STATES IMMIGRATION AND

14

CUSTOMS ENFORCEMENT

15

16

[PROPOSED] ORDER

17

PURSUANT TO STIPUATION, IT IS SO ORDERED.

18

19 Dated: April ____, 2020
20

21

By:

22

Hon. Donna M. Ryu

United States Magistrate Judge

23

24

25

26

27

28

- 4 -

STIPULATION AND [PROPOSED] ORDER RE MARCH 24, 2020 MEDIATION 3:13-CV-05878-EMC

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 AUDLEY BARRINGTON LYON, et al.,

Case No. 13-cv-05878-EMC

8

Plaintiffs,

9

v.

10 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
11 Defendants.
12

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Docket Nos. 120, 139

United States District Court
For the Northern District of California

13

14

I. INTRODUCTION

15

The instant action is brought on behalf of a certified class of adult immigration detainees

16 who are or will be held by Defendant United States Immigration and Customs Enforcement (ICE)

17 in Contra Costa County, Kern County, Sacramento County, or Yuba County. Docket No. 99 (First

18 Supplemental Complaint) (Compl.) at ¶ 90.

19

The Immigration and Nationality Act (INA) grants the Attorney General the discretionary

20 authority, transferred to the Department of Homeland Security (DHS), to detain any alien in

21 removal proceedings pending a final order. 8 U.S.C. § 1226(a). At issue are conditions at four

22 detention facilities used to hold adult immigration detainees: Yuba County Jail (Yuba), Rio

23 Cosumnes Correctional Center (RCCC) in Sacramento County, West County Detention Facility

24 (Contra Costa), and Mesa Verde Detention Facility (Mesa Verde) in Bakersfield County

25 (collectively, Facilities). See FAC at ¶¶ 31-32. Plaintiffs‟ cases are venued at the San Francisco

26 Immigration Court; thus, Contra Costa, RCCC, Yuba, and Mesa Verde are respectively 21, 83,

27 123, and 282 driving miles from San Francisco. See Docket No. 100 (Answer) at ¶ 33. Because

28 of this distance, Plaintiffs allege that in-person visits are “impractical at best,” making telephone

1 access “critical to Plaintiffs‟ ability to locate, retain, and seek advice from legal counsel” and

2 “essential to gather the evidence and government documents necessary to defend[] against

3 removal charges, locate witnesses, and do other things necessary to represent themselves in 4 complex legal proceedings.”1 FAC at ¶ 3.

5

However, because of restrictions on telephone access, Plaintiffs contend that they are

6 unable to retain or communicate with counsel, or to gather evidence to be presented in removal

7 proceedings or that is otherwise necessary for relief. Id. at ¶ 6. Plaintiffs specifically allege the

8 following limitations: (1) high rates and fees for paid calls from Housing Unit Phones; (2)

9 technical barriers and payment restrictions on Housing Unit Phones, such as a “positive

10 acceptance” requirement where the individual being called must accept the call; (3) inadequacies

11 of the free call or pro bono platforms; (4) limits on hours of telephone access; (5) lack of privacy;

United States District Court
For the Northern District of California

12 (6) inability to receive incoming calls or timely messages; and (7) failure to provide notice of

13 calling options for detainees with limited English or Spanish language skills. Plaintiffs Mot. at 6.

14 As a result of these alleged restrictions, Plaintiffs who would be eligible for relief are deported or

15 unnecessarily detained as they seek continuances in order to find counsel and gather evidence.

16 Compl. at ¶¶ 5, 6.

17

Based on these allegations, Plaintiffs bring three claims for relief: (1) the right to

18 representation of counsel, (2) the right to a full and fair hearing, and (3) the right to petition the

19 government for redress of grievances. Id. at ¶¶ 100-112. The Court certified a class of “all current

20 and future immigration detainees who are or will be held by ICE in Contra Costa, Sacramento, and

21 Yuba Counties” in April 2014 under Federal Rule of Civil Procedure 12(b)(2), and expanded the

22 class definition to include detainees who are or will be held in Bakersfield County. See Docket

23

24 1 For example, detainees seeking asylum or withholding or deferral of removal under the United

25

Nations Convention Against Torture often must gather evidence of their identity, conditions in their home country, and other evidence corroborating their claim. See Docket No. 120-19

26

(Realmuto Dec.) at ¶ 28. Similarly, detainees seeking cancellation of removal need to establish residency and physical presence, the absence of disqualifying criminal convictions, good moral

27

character, and/or hardship to a qualifying relative. Id. Finally, detainees who seek a U-visa must obtain a government-issued form certifying that the individual was a victim of a crime and that the

28 individual was helpful to law enforcement. See Docket No. 120-22 (Prasad Dec.) at ¶ 16.

2

1 Nos. 31, 98.

2

The parties‟ cross-motions for summary judgment came on for hearing before the Court on

3 February 11, 2016. See Docket Nos. 120 (Plaintiffs Mot.), 139 (Defendants Mot.). For the

4 reasons set forth below, the Court GRANTS in part and DENIES in part Defendants‟ motion for

5 summary judgment, and DENIES Plaintiffs‟ motion for summary judgment.

6

II. BACKGROUND2

7 A. Undisputed Facts

8

The Court finds that the following facts are not in dispute.

9

1. General Matters

10

1. Many of the detainees were arrested for a crime or are being held by the

11 ICE after serving time for their crimes. See Docket No. 139-2 (Shinners Dec.), Exh. 1 (Vaughn

United States District Court
For the Northern District of California

12 Dep.) at 175:25-176:4.

13

2. Of the individuals held between December 10, 2012 through August 31,

14 2014, 10.54% were classified low risk, 20.5% were medium-low risk, 35.7% were medium-high 15 risk, and 33.27% were high risk.3 Shinners Dec., Exh. 32.

16

3. Each of the Facilities provide access to telephones in or near the common

17 areas of their housing units (Housing Unit Phones). See Docket No. 119-5, Exh. A (Berg Report)

18 at 6-11.

19

4. Since this action was filed, ICE also began offering access to telephones

20 outside of the housing units at Yuba, Contra Costa, and Mesa Verde. Id. at 12-15.

21

5. Detainees at all four facilities also have access to a “Free Call Platform” or

22 “Pro Bono Platform” from the Housing Unit Phones and some Phone Rooms, which allows free

23 direct calls to a pre-programmed set of speed dial numbers. See Shinners Dec., Exh. 6 (Landy

24

25

2 Defendants make a number of evidentiary objections to the declarations submitted by Plaintiffs in support of their motion for summary judgment. Docket No. 139-1. Many of these objections

26

have merit, and the Court will sustain the objections. However, the objected to statements have no impact on the Court‟s ruling on the cross-motions for summary judgment.

27 3 Risk takes into account factors such as flight risk, protective custody factors (i.e., age), and the 28 seriousness or violent nature of criminal convictions. Vaughn Dep. at 199:5-19.

3

1 Dep.) at 159:16-20.

2

6. Detainees may also request to be transported to the ICE Field Office to

3 make telephone calls.4 See Shinners Dec., Exh. 31 (Butler Dep.) at 87:13-22. Detainees at all

4 facilities also have access to legal mail and attorney visits, although there is some evidence that

5 these services are inadequate substitutes for telephone access due to the delay in responses and

6 distance between the Facilities and where attorneys are located. See Docket No. 120-17 (Supp.

7 Vincent Dec.) at ¶ 11.

8

2. Contra Costa

9

7. Contra Costa is an open, campus-style facility. Shinners Dec., Exh. 20

10 (Bonthron Dep.) at 45:19. Because of this open layout, Contra Costa only houses detainees who

11 fall into certain security classifications, and does not house any ICE detainees classified as high

United States District Court
For the Northern District of California

12 risk, have accumulated a significant number of disciplinary incident reports, have medical or

13 mental health needs, or have been violent against other inmates or staff. Id. at 45:18-46:14;

14 118:18-22.

15

8. Housing Unit Phones are located in dayrooms on each tier of the housing

16 units. Berg Report at 6. They are typically set up in pairs facing each other, and are often located

17 only a few feet from the door of the nearest cell. Id. The Housing Unit Phones are also located

18 within auditory range of the common-area tables and televisions. Id.; see also Docket No. 124-5

19 (Takei Dec.) at DSC00452, 484, 504, 535. All Housing Unit Phone calls are monitored and

20 recorded. Berg Report at 7.

21

9. In order to use the Housing Unit Phone, detainees must pay an initiation fee

22 of $2.60-$3.00, and per-minute rates ranging from $.05-$.025. Docket No. 119-10 (Phillips Dec.),

23 Exh T.

24

25 4 This process requires being shackled, and is considered insufficient to comply with ICE

26

detention standards that require telephone access within the detention facility. See Docket No. 144-1 (Yee-Garcia Dec.), Exh. 49 (Meyer Dep.) at 132:2-14 (testifying that transportation requires

27

shackles on the hands and a chain around the waist); Exh. 50 (Dozoretz Dep.) at 124:16-126:1 (explaining that detention standards are facility-specific, and that if the facility lacks accessible

28 phones which provide privacy for detainees to discuss legal matters, it will be cited as deficient).

4

1

10. Housing Unit Phone calls must be paid for by the recipient. Ha Dec., Exh.

2 35 (Bonthron Dep.) at 165:20-25. Thus, detainees can only call individuals or offices that agree to

3 accept collect calls or have a prepaid account. Berg Report at 7.

4

11. Housing Unit Phones have a positive acceptance requirement; the phone

5 plays an outgoing message identifying the caller as an “inmate” calling from Contra Costa jail,

6 before prompting the call recipient to affirmatively accept the call by pressing a numbered key on

7 his or her phone. See Ha Dec., Exh. 36 (Neria-Garcia Dep.) at 169:22-24; Ha Dec., Exh. 35

8 (Bonthron Dep.) at 167:8-21.

9

12. The positive acceptance requirement makes it impossible for detainees to

10 navigate automated telephone systems to dial an extension or leave a voicemail message. Ha

11 Dec., Exh. 35 (Bonthron Dep.) at 167:22-168:4 (explaining that calls which go to voice mail or

United States District Court
For the Northern District of California

12 offices that use a phone tree system will not connect); Berg Report at 7-8, 10.

13

13. Detainees are not permitted to make three-way calls.5 Ha Dec., Exh. 31

14 (Philbin Dep.) at 85:9-11 (“Q: So is it your understanding that all facilities do not allow three-way

15 calls? A: That is my understanding.”); Phillips Dec., Exh. D (Contra Costa Detainee Handbook) at

16 14.

17

14. Detainees are only permitted to use the Housing Unit Phones during

18 designated free time hours. Ha Dec., Exh. 35 (Bonthron Dep.) at 38:1-13. Free time hours are

19 limited to Monday through Wednesday and Friday between 3:30 p.m. and 5:00 p.m. and 6:30 p.m.

20 to 9:00 p.m., Thursday between 6:30 p.m. and 9:00 p.m., and Saturday and Sunday between 10:30

21 a.m. and 11:30 a.m., 1:30 p.m. to 2:50 p.m., 3:30 p.m. to 5:00 p.m., to 6:45 p.m. and 10:00 p.m.

22 Ha Dec., Exh. 35 (Bonthron Dep.) at 60:1-8.

23

15. From the Housing Unit Phones, detainees can access the Talton Free Call

24 Platform, which allows direct calls to a limited set of speed-dial numbers, made up primarily of

25 federal government offices connected with immigration, the immigration court system, foreign

26

27

5 Three-way calls are used by attorneys to communicate with detainees who do not share a common language by including an interpreter. See Phillips Dec., Exh. Q (Shugall Dep.) at 96:23-

28 97:11.

5

1 consulates, and several free legal services providers. Berg Report at 6; see also Takei Dec. at

2 DSC00434, 555. The free call numbers do not include local government offices or local courts.

3 See Takei Dec. at DSC00434, 555. The free legal service providers also do not include all offices

4 on Defendants‟ free legal services list. Compare id. with Ha Dec., Exh. 9.

5

16. The Talton Free Call Platform has a 15-minute automatic cutoff. Contra

6 Costa officials were unable to explain why there is a cutoff. Ha Dec., Exh. 37 (Grant Dep.) at

7 77:4-18 (stating that she does not know why there is an automatic cutoff and when compared with

8 other telephone calls, “there‟s no comparison” and “[i]t doesn‟t make any sense to me.”).

9

17. In addition to the Housing Unit Phones, Contra Costa has -- following the

10 filing of this suit -- added phone rooms, from which detainees are permitted to make private and

11 free calls to case-related contacts. Ha Dec., Exh. 37 (Grant Dep.) at 64:9-15.

United States District Court
For the Northern District of California

12

18. Contra Costa maintains a dedicated e-mail address for attorney e-mail

13 messages, while anyone may send e-mail messages through its SmartMail service. Shinners Dec.,

14 Exh. 23 at 5; Grant Dep. at 88:15-89:9.

15

19. Information about the dedicated attorney e-mail system is posted on the

16 housing units to advise detainees that the system is available. Shinners Dec., Exh. 20 (Bonthron

17 Dep.) at 208:14-18.

18

20. The attorney e-mail system is not confidential; two copies of the e-mail are

19 printed out, with one being logged and the other hand-delivered to the detainee. Id. at 208:7-12; 20 Supp. Vincent Dec. at ¶ 10.6

21

3. RCCC

22

21. RCCC houses only male detainees in dormitory-style housing units that

23 contain phones the detainees can access at any time.7 Shinners Dec., Exh. 31 (Butler Dep.) at

24

25

6 It is unclear how quickly messages are passed onto the detainees; one attorney stated that she would message her clients to call her, but would not receive a call back for several days. Supp.

26

Vincent Dec. at ¶ 10. However, she was unsure if the waiting period was due to phone availability, a delay in clients receiving messages, or both. Id.

27 7 For detainees held in administrative segregation, there is a dispute over how many hours a day

28

these detainees would have access to phones. See Ha Dec., Exh. 32 (Butler Dep.) at 63:22-64:25 (stating that they have access “several hours a day”); Docket No. 120-8 (M.G. Dec.) at ¶ 6 (stating

6

1 32:12-14, 41:2.

2

22. The Housing Unit Phones are located within auditory range of the

3 stairwells, and below a television which is kept at a loud volume. Berg Report at 7-8; see also

4 Takei Dec. at DSC00329, 290.

5

23. All Housing Unit Phone calls are monitored and recorded. Berg Report at

6 8.

7

24. In order to use the Housing Unit Phones, detainees must pay an initiation

8 fee of $1.75 to $2.40, and per-minute rates ranging from $.175-$.50. Phillips Dec., Exh. B at 52.

9 Phone calls are limited to 20 minutes. Ha Dec., Exh. 32 (Butler Dep.) at 81:17-18.

10

25. Like Housing Unit Phones at Contra Costa, Housing Unit Phones at RCCC

11 have a positive acceptance requirement, with the phone playing an outgoing message identifying

United States District Court
For the Northern District of California

12 the caller as a “Sacramento County inmate.” Ha Dec., Exh. 32 (Butler Dep.) at 118:3. The

13 recipient must then accept the call. Ha Dec., Exh. 32 (Butler Dep.) at 118:15-16.

14

26. Detainees are not permitted to make three-way calls. Ha Dec., Exh. 31

15 (Philbin Dep.) at 85:9-11.

16

27. From the Housing Unit Phones, detainees can access the Talton Free Call

17 Platform. Berg Report at 6; see also Takei Dec. at DSC00356. The free call numbers do not

18 include local government offices or local courts, and do not include all offices on Defendants‟ free

19 legal services list. Compare id. with Ha Dec., Exh. 9.

20

28. The instructions for using the Talton Free Call Platform are confusing and

21 incorrect. Berg Report at 8.

22

29. Unlike the other Facilities, RCCC does not offer a dedicated phone room

23 for private calls. Instead, RCCC permits detainees to make phone calls from a private phone in

24 the law library. Shinners Dec., Exh. 31 (Butler Dep.) at 37:16-38:1.

25

30. The library phone is free, has no time limit and does not require positive

26

27 that while in restricted housing, he was only let out of his cell one hour a day, during which he had 28 access to showers and telephone calls).
7

1 acceptance. See Shinners Dec., Exh. 31 (Butler Dep.) at 81:18-20.

2

31. Like Contra Costa, there is an e-mail system for people to communicate

3 with a detainee. Shinners Dec., Exh. 31 (Butler Dep.) at 92:4-10. Each day, the e-mail is pulled

4 off the server and delivered by the night shift to the deputies to be passed out to the detainees.

5 Shinners Dec., Exh. 31 (Butler Dep.) at 92:11-15. The night shift and deputies are permitted to

6 read these messages. Shinners Dec., Exh. 31 (Butler Dep.) at 92:16-23.

7

4. Yuba

8

32. Yuba provides a mix of housing styles; depending on the housing style,

9 detainees have varying degrees of access to the housing unit phones. Shinners Dec., Exh. 27 (Gil

10 Dep.) at 22:9-23:11. Individuals who are in an administrative segregation tank (individual cells)

11 have access to phones for one hour a day. Id. at 22:9-15. Other units with single cells permit

United States District Court
For the Northern District of California

12 access for four hours a day. Id. at 22:16-21. Individuals held in dorm style settings have access to

13 phones at all times. Id. at 22:21-25.

14

33. All Housing Unit Phone calls can be monitored and recorded, although such

15 calls are not routinely monitored. Id. at 67:15-19.

16

34. In order to use the Housing Unit Phones, detainees must pay an initiation

17 fee of $3.20, and per-minute rates ranging from $.06-$330. See Ha Dec., Exh. 43.

18

35. Phone calls are limited to twenty minutes. Ha Dec., Exh. 27 (Vaughn Dep.)

19 at 116:6-9.

20

36. Like Housing Unit Phones at other facilities, the Housing Unit Phones at

21 Yuba have a positive acceptance requirement, with the phone playing an outgoing message

22 identifying the caller as an “inmate at the Yuba County Jail.” Berg Report at 10. The recipient

23 must then accept the call. Id.

24

37. Detainees are also not permitted to make three-way calls. Ha Dec., Exh. 31

25 (Philbin Dep.) at 85:9-11.

26

38. From the Housing Unit Phones, detainees can access the Talton Free Call

27 Platform. Berg Report at 9; see also Takei Dec., at DSC00129, 148, 188, 253, 254. The free call

28 numbers do not include local government offices or local courts, and do not include all offices on 8

1 Defendants‟ free legal services list. Compare Takei Dec. at DSC00129, 188 with Ha Dec., Exh. 9.

2

39. Yuba provides a phone room that contains two phones for detainees to

3 make free calls. Shinners Dec., Exh. 27 (Gil Dep.) at 24:19-24.

4

40. The Yuba phone room is generally available for use between 8 a.m. and 4

5 p.m., and sometimes earlier if a detainee needs to contact someone on the east coast. Shinners

6 Dec., Exh. 27 (Gil Dep.) at 25:19-23.

7

41. Detainees are limited to one 20-minute legal call per week in order “to

8 provide reasonable and equitable access for all detainees,” and it takes about one week to process

9 a request. Ha Dec., Exh. 19; Berg Report at 15 (“As of August 2015, there was a 1 to 2-week

10 backlog in providing these calls at Yuba.”).

11

42. Phones in this room retain the positive acceptance requirement. Berg

United States District Court
For the Northern District of California

12 Report at 13.

13

43. Finally, the official policy is that the free legal telephone calls are limited to

14 phone calls made directly to a legal representative, preventing detainees from using the phone

15 room to call local agencies, potential witnesses or sponsors, or family members to gather evidence.

16 Ha Dec., Exh. 19; see also K.M. Dec. at ¶ 14; Docket No. 120-6 (O.A. Dec. at ¶ 23).

17

44. Yuba also permits free calls from a phone in the booking area. Shinners

18 Dec., Exh. 27 (Gil Dep.) at 21:22-23.

19

45. Yuba maintains a system for receiving incoming messages from attorneys.

20 Id. at 68:18-20. An attorney can call the facility, and facility staff are to deliver the message to the

21 detainee within hours. Id. at 68:22-17. An attorney can also e-mail or fax the facility a message to

22 be delivered to the detainee. Id. at 69:18-70:7.

23

5. Mesa Verde

24

46. Mesa Verde is a medium-security facility that houses only ICE detainees,

25 including those with high classifications. Shinners Dec., Exh. 8 (Murray Dep.) at 40:1-43:23;

26 Berg Report at 10.

27

47. Mesa Verde has four Units, and each of the Units has ten phones, many of

28 which are placed in large banks of telephone installations immediately adjacent to each other, 9

1 separated by Plexiglas partitions. Berg Report at 10; see also Takei Dec. at DSC00740, 754. The

2 holding cells are also equipped with a single telephone unit on wheels that can be rolled up to the

3 cell door. Berg Report at 10.

4

48. Housing Unit Phone calls can be monitored and recorded (although such

5 calls are not routinely monitored), except for calls to the Pro Bono Platform or to attorneys

6 registered with the facility and/or the phone provider, which are never recorded or monitored.

7 Shinners Dec., Exh. 10 (Bonnar Dec.) at ¶¶ 16-18.

8

49. Housing Unit Phones require no initiation fee, and per-minute rates are $.10

9 for domestic calls and $.15-35 for international calls. Ha Dec., Exh. 44. Phone calls are limited to

10 180 minutes. Docket No. 144-1 (Yee-Garcia Dec.), Exh. 60 (Talton Dep.) at 155:5-10.

11

50. Housing Unit Phones have a positive acceptance requirement, with the

United States District Court
For the Northern District of California

12 phone playing an outgoing message stating: “This is an Intelmate automated operator with a

13 [PREPAID, FREE, COLLECT] from [RESIDENT‟S NAME] at [FACILITY NAME].” Ha Dec.,

14 Exh. 7. The recipient is then given the option to accept or deny the call. Id.

15

51. Three-way calls are not permitted and will be blocked. Id.

16

52. Toll free numbers, i.e., calls to 800, 866, 900 area codes, are blocked. Ha

17 Dec., Exh. 40 (Murray Dep.) at 95:3-19.

18

53. Detainees can access the Talton Free Call Platform from the Housing Unit

19 Phones. Berg Report at 10; see also Takei Dec., at DSC00711, 712, 739, 752. The free call

20 numbers do not include local government offices or local courts, and do not include all offices on

21 Defendants‟ free legal services list. Compare Takei Dec. at DSC00616 with Ha Dec., Exh. 9.

22

54. Mesa Verde has several visitation rooms equipped with direct dial phones.

23 Mesa Verde‟s stated policy is that free calls are permitted to the immigration court, federal and

24 state courts, consular offices, legal service providers, government offices, and other individuals if

25 there is a personal or family emergency or other compelling need. Shinners Dec., Exh. 17; Exh.

26 11 (Harvey Dep.) at 37:3-15; see also Shinners Dec., Exh. 10 (Bonnar Dec.) at ¶ 22 (“The facility

27 does not limit legal calls from the private room to calls to attorneys or legal representatives. The

28 facility will allow private legal calls to be made to courts; government agencies; witnesses; and 10

1 other verifiable, case-related contacts.”).

2

55. Mesa Verde informs detainees of this private phone option via the Mesa

3 Verde detainee handbook. See Plaintiffs Mot. at 18 (arguing that access to Phone Rooms at Yuba,

4 Contra Costa, and RCCC‟s library option are “not made known to Plaintiffs through policy

5 documents or handbooks”); see also Docket No. 120-5 (R.K. Dec.) at ¶ 45 (“I read in a handbook

6 or posting somewhere in the facility that detainees can make free, private calls to attorneys.”).

7

56. Mesa Verde also allows callers to leave messages for detainees in two ways.

8 First, voicemails can be left for detainees; the cost of leaving a voicemail message is $1.20 per

9 message. Shinners Dec., Exh. 11 (Bonnar Dec.) at ¶ 31. These voicemail messages are accessible

10 directly by the detainee, without having to be transcribed by a Mesa Verde employee. Ha Dec.,

11 Exh. 39 (Harvey Dep.) at 55:19-56:10. Second, legal representatives may also call the facility and

United States District Court
For the Northern District of California

12 leave messages at no cost. Id. at ¶ 32. Emergency messages may be left using this latter system at

13 no cost. Id. Using this system, messages are written down and delivered no less than three times

14 a day. Ha Dec., Exh. 38 (Andrews Dep.) at 84:10-14. Because they are written down by a staff

15 member, they are not considered private. Ha Dec., Exh. 39 (Harvey Dep.) at 57:2-5.

16 B. Disputed Facts

17

The parties dispute a number of facts, primarily related to the availability of private phone

18 calls at each Facility.

19

 For the Contra Costa phone room, the parties dispute whether detainee calls are limited to

20

attorneys only, and the availability of these phone rooms. Defendants assert that detainee

21

calls have been made to non-attorneys from the phone rooms, and that the phone rooms are

22

available at any time upon request. See Shinners Dec., Exh. 20 (Bonthron Dep.) at 38:18-

23

20 (stating that detainees have 24/7 hour access to the private phone line in the phone

24

rooms); Shinners Dec., Exh. 24 (Lyon Dep.) at 66:16-24 (stating that detainees generally

25

cannot use phones during lockdown time, but that he was permitted to make a call because

26

his attorney had made a request for a call during that particular time beforehand); Shinners

27

Dec., Exh. 25 (V.V. Dep.) at 94:25-95:4; Shinners Dec., Exh. 37 (phone logs indicating

28

calls with family members). Plaintiffs contend that access is granted at the discretion of

11

1

individual deputies, and that many detainees are denied access outside of free-time hours.

2

Ha Dec., Exh. 36 (Neria-Garcia Dep.) at 61:22-62:1 (“In Contra Costa we -- we were only

3

allowed to use the phone during our free time, which was an hour per day.”); Phillips Dec.,

4

Exh. P (Lyon Dep.) at 48:23-49:2 (stating that phone room access was usually limited to

5

“free time, but it depends on the deputy, he can let you use it.”). Plaintiffs also present

6

evidence that until at least October 2015, the phone rooms were limited to attorney calls

7

only. Berg Report at 12 (“Detainee interviews confirmed that the phone rooms can only be

8

used to call attorneys and only during free-time hours, with some exceptions based on the

9

discretion of deputies”). For example, Lieutenant Bonthron explained in his August 2015

10

deposition that Contra Costa expanded its policy to allow phone use not just with

11

attorneys; however, Plaintiffs‟ expert, Mr. Berg, reported that during his visit to Contra

United States District Court
For the Northern District of California

12

Costa in October 2015, the deputies who demonstrated the phone system informed him

13

that they would disconnect the call if they determined that the call was not to an attorney‟s

14

office. Shinners Dec., Exh. 20 (Bonthron Dep.) at 123:21-24; Berg Report at 12.

15

 At RCCC, the parties dispute whether the option to make phone calls from the law library

16

is truly private, as the phone is located on the library officer‟s desk, close to where the

17

deputy sits, and is within earshot of other detainees using the library. Berg Report at 13;

18

see also Takei Dec., at DSC00422, 423, 428. There is also evidence that detainees are not

19

given advance notice of when they may use the library phone, and therefore cannot

20

schedule calls with their attorneys or other individuals. See Docket No. 120-8 (M.G. Dec.)

21

at ¶ 24; Docket No. 120-12 (I.P. Dec.) at ¶ 24.

22

 For the Yuba phone room, the parties dispute whether this phone room is truly private, as

23

there is no barrier between the phones. Berg Report at 13; see also Takei Dec., at

24

DSC00190. Furthermore, under normal circumstances, it is expected that both telephones

25

will be used simultaneously, although Yuba‟s policy states that “[w]hen a detainee

26

specifically requests a private phone call, they may be placed into the room alone.” Ha

27

Dec., Exh. 19.

28

 For the Mesa Verde phone rooms, the parties dispute whether calls to non-attorneys are

12

1

permitted. Plaintiffs point to policies which explain the policy for obtaining legal calls as

2

submitting a detainee request (kite) to the shift supervisor with the phone number of the

3

attorney, which will then be verified by onsite staff. Ha Dec., Exh. 16. Plaintiffs also cite

4

to deposition testimony, in which Mesa Verde officials expressed uncertainty as to whether

5

a legal call would include witnesses. See Ha Dec., Exh. 40 (Murray Dep.) at 91:5-14

6

(stating that he did not know if a legal call included calls to witnesses); Yee-Garcia Dec.,

7

Exh. 54 (Harvey Dep.) at 74:15-75:20 (stating that she had not scheduled a call to a

8

potential witness for a pro se detainee, but also noting that she had “never had anybody ask

9

that, so I don‟t really have an understanding of calling a witness.”).

10 C. Named Plaintiffs‟ Experiences

11

Although the parties‟ characterizations of these facts may differ, the parties do not dispute

United States District Court
For the Northern District of California

12 the following facts regarding each of named Plaintiffs‟ experiences.

13

1. Jose Astorga-Cervantes

14

57. Named Plaintiff Jose Astorga-Cervantes was detained at RCCC for ninety

15 days beginning on or about November 20, 2013. See Docket No. 14-3 (Astorga-Cervantes Dec.)

16 at ¶ 4; Shinners Dec., Exh. 7 (Astorga-Cervantes Dep.) at 33:16-17.

17

58. Beyond his thirty-second free phone call, he was unable to speak with his

18 family due to the costs of phone calls, except for once on December 17 when a fellow inmate

19 allowed him to use his phone credit. Astorga-Cervantes Dec. at ¶ 7.

20

59. With the assistance of his fellow detainees, Mr. Astorga-Cervantes was able

21 to use the Pro Bono Platform on the housing unit phones to contact several legal aid groups,

22 including Catholic Charities and another in Palo Alto. Shinners Dec., Exh. 7 (Astorga-Cervantes

23 Dep.) at 17:20-23. Both Catholic Charities and the group in Palo Alto informed him that they

24 could not pick up any more cases. Id. at 19:8-15.

25

60. Mr. Astorga-Cervantes was able to obtain an attorney for his first

26 immigration hearing on December 18, 2013. Id. at 40:3-16.

27

61. On January 23, 2014, the immigration judge granted Mr. Astorga-Cervantes

28 release on bond, which he paid on February 20, 2014. Id. at 60:17-61:10. 13

1

2. Nancy Neria-Garcia

2

62. Named Plaintiff Nancy Neria-Garcia was detained at Yuba from June 26,

3 2014 to March 26, 2015, at Mesa Verde from March 26, 2015 to June 3, 2015, and at Contra Costa

4 from June 4, 2015 until her release on October 22, 2015. Docket No. 120-7 (Neria-Garcia Dec.) at

5 ¶¶ 7-10; Shinners Dec., Exh. 36 (Neria-Garcia Dep.) at 18:11-15.

6

63. Ms. Garcia retained immigration counsel, who she was able to meet with in-

7 person and speak to on the phone while being held at Yuba. See Shinners Dec., Exh. 36 (Neria-

8 Garcia Dep.) at 27:3-9, 28:8-12.

9

64. Ms. Neria-Garcia‟s access to phones varied depending on which housing

10 unit she was at. Neria-Garcia Dec. at ¶¶ 14-17. For example, in one housing unit, Ms. Neria-

11 Garcia was locked down in a cell for 23 hours a day, and could only access the telephone during

United States District Court
For the Northern District of California

12 one hour of “hallway time.” Id. at ¶ 17.

13

65. Ms. Neria-Garcia was uncomfortable talking to her attorney about her case

14 on the housing unit phones due to lack of privacy.

15

66. It was not until October 2014 that she was informed by another detainee

16 that she could make free telephone calls from the phone room, although she had to share the phone

17 room with another detainee. Id. at ¶ 20.

18

67. Ms. Neria-Garcia had problems calling coworkers for assistance in her case

19 due to the positive acceptance requirement on the Housing Unit Phones; coworkers would not pick

20 up her calls because they did not know who was calling them from jail. Shinners Dec., Exh. 36

21 (Neria-Garcia Dep.) at 54:3-24.

22

68. While at Mesa Verde, Ms. Neria-Garcia read in the detainee handbook that

23 detainees could make private calls to their attorneys. Neria-Garcia Dec. at ¶ 25.

24

69. She would write requests to speak to her attorney, to varying degrees of

25 success; for example, one request was granted the next day, one was granted four days later, and

26 one was denied because she had to wait a few days before making another request. Id. at ¶ 26.

27

70. Ms. Neria-Garcia was able to make between eight and ten short calls to her

28 attorney from the Housing Unit Phones. Shinners Dec., Exh. 36 (Neria-Garcia Dep.) at 141:1314

1 18.

2

71. Ms. Neria-Garcia was held at Mesa Verde while her case was on appeal,

3 and has admitted that the telephone situation at Mesa Verde did not interfere with her case or her

4 ability to seek release on bond. Id. at 125:24-126:9.

5

72. While at Contra Costa, Ms. Neria-Garcia was able to meet her attorney in-

6 person between seven and ten times, and to speak with him using the phone room at least fifteen

7 times (but never the Housing Unit Phone). Id. at 143:23-145:16.

8

3. Audley Barrington Lyon, Jr.

9

73. Named Plaintiff Audley Barrington Lyon, Jr. was detained at Contra Costa

10 from October 22, 2013 to April 23, 2015. Docket No. 120-9 (Lyon Dec.) at ¶ 5; Compl. at ¶ 11;

11 Answer at ¶ 11.

United States District Court
For the Northern District of California

12

74. Mr. Lyon was able to make phone calls using the Pro Bono Call platform by

13 December 3, 2013. Shinners Dec., Exh. 24 (Lyon Dep.) at 98:11-14.

14

75. Prior to obtaining representation, Mr. Lyon attempted to gather documents

15 on his own. Lyon Dec. at ¶ 5. During that time, he continued his case three times, for two to three

16 weeks each time, while he tried to gather documentation in support of his U visa application. Id.

17 at ¶¶ 5-7.

18

76. Relying on himself and his wife‟s assistance, he tried to obtain a police

19 report from the East Palo Alto Police Department and records from the victims services unit of the

20 San Mateo District Attorney‟s Office. Id. at ¶ 7. However, he was unable to call either the police

21 department or the victims services unit, as neither was willing to accept his call. Id. at ¶ 8.

22

77. Mr. Lyon‟s wife was also unable to obtain the police report because the

23 police department would only release it to Mr. Lyon or Mr. Lyon‟s legal representative. Id. at ¶

24 11.

25

78. Mr. Lyon had difficulty communicating with his wife because she could not

26 afford to pay for telephone calls; instead, they would communicate by writing letters, a process he

27 considered slow and inefficient as a simple question caused a delay of several days. Id. at ¶ 9-10.

28

79. Mr. Lyon was eventually able to retain counsel in early 2014. Id. at 28:1-

15

1 23. After he obtained counsel, Mr. Lyon was able to communicate with his attorney because she

2 would come to the building so that he did not need to call her. Shinners Dec., Exh. 24 (Lyon

3 Dep.) at 94:2-8.

4

III. DISCUSSION

5 A. Standard of Review

6

The Court shall grant a motion for summary judgment “if the movant shows that there is

7 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

8 law.” Fed. R. Civ. Proc. 56(a). An issue of fact is genuine only if there is sufficient evidence for a

9 reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.

10 242, 248-49 (1986). “The mere existence of a scintilla of evidence in support of the [non-moving

11 party]‟s position will be insufficient; there must be evidence on which the jury could reasonably

United States District Court
For the Northern District of California

12 find for the [non-moving party].” Id. at 252. At the same time, “all reasonable inferences must be

13 drawn in favor of the non-movant.” John v. City of El Monte, 515 F.3d 936, 941 (9th Cir. 2008).

14

The moving party bears the burden of demonstrating the absence of a genuine issue of

15 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party

16 has the ultimate burden of proof, the moving party may prevail on a motion for summary

17 judgment by pointing to the non-moving party‟s failure “to make a showing sufficient to establish

18 the existence of an element essential to that party‟s case.” Id. at 322.

19 B. Immigration and Nationality Act (INA)

20

First, Plaintiffs allege that their rights to counsel and to present evidence, as articulated by

21 the INA, are violated by the Facilities‟ phone conditions. Plaintiffs Mot. at 25. The INA itself

22 does not dictate the precise level of telephone access required for detainees. Instead, Plaintiffs

23 rely on 8 U.S.C. § 1229a(b)(4) to establish their rights under the INA. Section 1229a governs

24 removal proceedings generally, while section 1229a(b)(4) delineates an alien‟s rights in

25 proceedings, which include:

26

(A) the alien shall have the privilege of being represented, at no

27

expense to the Government, by counsel of the alien‟s choosing who

is authorized to practice in such proceedings, 28

16

(B) the alien shall have a reasonable opportunity to examine the

1

evidence against the alien, to present evidence on the alien‟s own

behalf, and to cross-examine witnesses presented by the

2

Government but these rights shall not entitle the alien to examine

such national security information as the Government may proffer in

3

opposition to the alien‟s admission to the United states or to an

application by the alien for discretionary relief under this chapter,

4

and8

5

(C) a complete record shall be kept of all testimony and evidence

produced at the proceeding.

6

7 Plaintiffs argue that a necessary condition of these statutory rights include the ability to retain or

8 consult with counsel under section 1229a(b)(4)(A), and to obtain evidence under section

9 1229a(b)(4)(B).

10

1. Right to Counsel

11

Because removal proceedings are civil rather than criminal proceedings, “litigants in

United States District Court
For the Northern District of California

12 removal proceedings have no Sixth Amendment right to counsel.” Torres-Chavez v. Holder, 567

13 F.3d 1096, 1100 (9th Cir. 2009) (citation omitted). However, the Ninth Circuit has also

14 recognized that “[t]he right to counsel in immigration proceedings is rooted in the Due Process

15 Clause and codified at 8 U.S.C. § 1362 and 8 U.S.C. § 1229a(b)(4)(A).” Biwot v. Gonzales, 403

16 F.3d 1094, 1098 (9th Cir. 2005).

17

Plaintiffs contend that a detainee‟s statutory rights under the INA should be informed by

18 Sixth Amendment cases concerning the rights of criminal defendants to counsel. Plaintiffs Mot. at

19 22, 25. In support, Plaintiffs cite Montes-Lopez v. Holder, in which the Ninth Circuit found that a

20 petitioner‟s right to be represented in removal proceedings was violated when the immigration

21 judge (IJ) refused to continue the hearing when the petitioner‟s attorney failed to appear. 694 F.3d

22 1085, 1086 (9th Cir. 2012). In concluding that an alien need not show prejudice where an alien is

23 denied a statutory right to be represented by counsel, the Ninth Circuit drew in part on the “logic

24 that has guided [its] interpretation of the Sixth Amendment.” Id. at 1092-93. However, the Ninth

25

26 8 8 U.S.C. § 1362 likewise states that: “In any removal proceedings before an immigration judge

27

and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the

28 Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”

17

1 Circuit did not so go far as to suggest that courts should import rights due under the Sixth

2 Amendment to the immigration context; instead, the Ninth Circuit acknowledged that “[t]he Sixth

3 Amendment does not apply in the immigration context.” Id. at 1092.

4

Other Ninth Circuit decisions have declined to apply rights and standards owed under the

5 Sixth Amendment in the immigration context. For example, the Ninth Circuit has held that

6 “Miranda warnings are not required before questioning in the context of a civil deportation

7 hearing . . . because deportation proceedings are not criminal prosecutions, but are civil in nature.”

8 United States v. Solano-Godines, 120 F.3d 957, 960 (9th Cir. 1997); see also id. at 960-61 (“The

9 full panoply of procedural and substantive safeguards which are provided in a criminal proceeding

10 are not required at a deportation hearing”) (internal modifications and citation omitted). The

11 Ninth Circuit has also noted that with respect to ineffective assistance of counsel, the Sixth

United States District Court
For the Northern District of California

12 Amendment framework does not apply; instead, “aliens shoulder a heavier burden of proof in

13 establishing ineffective assistance of counsel under the Fifth Amendment than under the Sixth 14 Amendment.”9 Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009) (citation omitted).

15

Given that the Ninth Circuit has generally recognized that the Sixth Amendment does not

16 apply to removal hearings because they are civil proceedings, the Court declines to adopt

17 Plaintiffs‟ suggestion that Sixth Amendment cases should be applied to determine what rights are

18 required to satisfy the INA‟s right to counsel. See Docket No. 141 (Plaintiffs Opp.) at 23. The

19 Ninth Circuit has never so held, and the Court is reluctant to so interpret the INA absent any

20 indication that Congress intended to import full Sixth Amendment standards into the INA.

21 Plaintiffs have not submitted any such indication.

22

The Court must therefore look to existing precedent. The Ninth Circuit has thus far only

23 found violations of the statutory right to counsel where conditions were “tantamount to denial of

24

25

9 While Torres-Chavez analyzed the plaintiff‟s ineffective assistance of counsel claim by applying the Sixth Amendment framework, that was because the Sixth Amendment applied a higher

26

standard; thus, “[i]f an attorney‟s performance passes muster under Strickland, it cannot render an alien‟s proceeding fundamentally unfair. In other words, there is no violation of the alien‟s Fifth

27

Amendment right to due process if the alien‟s counsel was effective for Sixth Amendment purposes.” 567 F.3d at 1100. Torres-Chavez does not suggest that courts should apply rights due

28 under the Sixth Amendment, as Plaintiffs contend. See Plaintiffs Opp. at 23.

18

1 counsel.” Biwot, 403 F.3d at 1099 (finding that IJs should grant reasonable continuances to give

2 an alien sufficient time to locate counsel and permit counsel to prepare for a hearing); see also

3 Rios-Berrios v. INS, 776 F.2d 859, 862-63 (9th Cir. 1985) (finding that IJ should have continued

4 the hearing to provide the petitioner reasonable time to locate counsel where petitioner was

5 effectively given only two business days to obtain an attorney, was in custody, spoke only

6 Spanish, had limited education, was unfamiliar with the country and legal procedures, and was

7 3,000 miles from his only friend in the country).

8

Here, while Plaintiffs present evidence that telephone restrictions result in difficulty

9 locating, retaining, and consulting with counsel, Plaintiffs have not presented evidence that these

10 restrictions were “tantamount to denial of counsel.” For example, Plaintiffs acknowledge that

11 many of their witnesses did eventually find counsel after months of searching and with assistance

United States District Court
For the Northern District of California

12 from friends or family. See Plaintiffs Opp. at 4, fn. 9. There are also available means of

13 communicating with counsel, whether by non-private calls, legal mail, in-person meetings, and

14 scheduling private calls. While these options may limit the effectiveness of communications with

15 counsel, Plaintiffs have not shown that they are tantamount to an outright denial of counsel. For

16 this reason on this record, the Court finds that Defendants are entitled to summary judgment on

17 this claim.

18

2. Right to a Full and Fair Hearing Under Section 1229a(b)(4)(B)

19

Next, Plaintiffs contend there is a right to a full and fair hearing -- which includes a

20 reasonable opportunity to prepare the case, including the gathering of evidence -- based on Section

21 1229a(b)(4)(B) on the INA. Plaintiffs Mot. at 23; Compl. at ¶ 107. Again, section 1229a(b)(4)(B)

22 require that “the alien shall have a reasonable opportunity to examine the evidence against the

23 alien, to present evidence on the alien‟s own behalf, and to cross-examine witnesses presented by

24 the Government . . . .” However, none of the cases examining the INA cited by Plaintiffs discuss

25 a general right to gather evidence in preparation for a hearing; instead, they focus primarily on

26 whether an IJ‟s denial of a continuance of a hearing resulted in the exclusion of evidence. See

27 Cruz Rendon v. Holder, 603 F.3d 1104, 1110 (9th Cir. 2010) (“When determining whether an IJ

28 has abused her discretion, we consider a number of factors, including: (1) the nature of the 19

1 evidence excluded as a result of the denial of the continuance . . . .); Baires v. INS, 856 F.2d 89, 92

2 (9th Cir. 1988) (petitioner‟s statutory right to present evidence was violated where IJ denied

3 request for a continuance and change of venue, preventing petitioner from presenting the 4 testimony of his expert witness and two other potential witnesses).10

5

Plaintiffs‟ reliance on Dent v. Holder is misplaced. In Dent v. Holder, the Ninth Circuit

6 found that the ICE was statutorily required to provide documents in the petitioner‟s A-file which

7 were relevant to the petitioner‟s citizenship claim. 627 F.3d 365, 369, 374 (9th Cir. 2010). Dent

8 is distinguishable on two grounds. First, Dent was not decided on statutory grounds, but on due

9 process grounds, as the Ninth Circuit found that the failure to provide the A-file documents

10 violated the petitioner‟s Fifth Amendment right to due process (including the right to a full and 11 fair hearing).11 Id. at 374. Second, the Ninth Circuit‟s finding that the petitioner was entitled to

United States District Court
For the Northern District of California

12 his A-file was premised on section 1229a(c)(2)(B), which expressly gives an alien access to his

13 entry document and any other non-confidential records pertaining to the alien‟s admission or

14 presence in the country. Id. Thus, there was a direct violation of the plaintiff‟s right to particular

15 evidence as specifically required by statute.

16

17 10 In Cruz Rendon and Baires, the evidence was available for the hearing, but could not actually be

18

presented at the hearing because of the IJ‟s action. See Cruz Rendon, 603 F.3d at 1109 (IJ precluded Cruz Rendon from testifying as to any topic that was mentioned in her son‟s

19

psychological evaluation, including “the life she had created for [her son] in the United States, [her son‟s] medical and educational needs, and the hardships [her son] would face if forced to

20

relocate to Mexico”); Baires, 856 F.2d at 92 (denial of continuance precluded presentment of evidence because “[t]he necessary arrangements for the testimony of these potential witnesses

21

could not be completed by April 15, nor was the expert able to travel to Florence”). The challenged conduct in these cases was more proximate to the presentation of evidence at the

22

hearing than the alleged interference with the investigation and gathering of evidence at issue in the instant case.

23 11 Plaintiffs‟ other cases do not rely on the statutory right to present evidence under section

24

1229a(b)(4)(B), but instead rely on due process grounds, see Ibarra-Flores v. Gonzales, 439 F.3d 614, 621 (9th Cir. 2006) (holding that petitioner‟s due process rights were violated where IJ

25

refused to order the INS to produce petitioner‟s voluntary departure form), or the failure to provide a petitioner with a reasonable opportunity to examine the evidence against him in the hearing. See

26

Singh v. Holder, 405 Fed. Appx. 193, 194 (9th Cir. 2010) (holding that petitioner‟s statutory right to examine the evidence against him was violated where the IJ refused to grant a continuance to

27

allow the petitioner to conduct a forensic analysis of the original letters that the government had failed to provide even though the government knew the petitioner wanted to use the letters in his

28 defense against the government‟s allegations).

20

1

In contrast, Plaintiffs‟ concern in the instant case is the process of gathering evidence in

2 advance of a hearing, evidence such as that from family members, the community, and other

3 government agencies (such as local police departments); the INA does not expressly address the

4 process of gathering such evidence. Neither the language of the statute (which provides only for

5 the reasonable opportunity to present evidence) nor any existing case precedent cited by Plaintiffs

6 supports Plaintiffs‟ expansive reading of the INA that would provide for a general right to 7 investigate and gather evidence in advance of and in preparation for a removal hearing.12 Thus,

8 the Court holds that Defendants are also entitled to summary judgment on this statutory claim.

9 C. Due Process

10

Plaintiffs assert that their rights to counsel and to a full and fair hearing under the due

11 process clause have been violated. In general, “[t]he Fifth Amendment guarantees due process in

United States District Court
For the Northern District of California

12 deportation proceedings. As a result, an alien who faces deportation is entitled to a full and fair

13 hearing of his claims and a reasonable opportunity to present evidence on his behalf.” Colmenar

14 v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (citations omitted). A decision can be reversed on due

15 process grounds “if the proceeding „was so fundamentally unfair that the alien was prevented from

16 reasonably presenting his case.‟” Id. (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th

17 Cir. 1986). The alien must also “show prejudice, which means that the outcome of the proceeding

18 may have been affected by the alleged violation.” Id.

19

1. Substantive Due Process

20

Plaintiffs contend that their confinement violates substantive due process in two ways: (1)

21 being housed in conditions identical to county prisoners awaiting criminal trials and serving

22 criminal sentences is unconstitutionally punitive, and (2) restrictions and denial of telephone

23 access prolong Plaintiffs‟ detention without any compelling justification. Plaintiffs Mot. at 44-45.

24

a. Conditions of Confinement

25

First, the Court finds that Defendants are correct in that Plaintiffs did not expressly plead a

26

27

12 To the extent Plaintiffs again rely on Montes-Lopez and Torres-Chavez, the Court finds for the reasons stated above that neither of these cases stands for the proposition that rights under Sixth

28 Amendment jurisprudence should be applied in the immigration context.

21

1 claim regarding the conditions of confinement. Plaintiffs‟ complaint is focused specifically on the

2 alleged failure to provide adequate phone access; it does not challenge the practice of confining

3 detainees in conditions identical to criminal prisoners. See FAC at ¶ 91 (class wide allegation that

4 Defendants have engaged in a common course of conduct of denying and restricting Plaintiffs‟

5 telephone access). While Plaintiffs do allege due process violations, which could encompass both

6 procedural and substantive due process violations, Plaintiffs‟ due process violations are still

7 related to the failure to provide adequate phone access, and the resulting impacts. FAC at ¶¶ 100-

8 109. Because Plaintiffs did not plead any claims or facts challenging their confinement in

9 conditions identical to criminal prisoners, no such claim is at issue, and the Court finds that

10 summary judgment in favor of Defendants on this claim is appropriate.

11

b. Prolonged Imprisonment

United States District Court
For the Northern District of California

12

Second, the Court finds that Plaintiffs do not have a claim for substantive due process as to

13 prolonged imprisonment. Unlike their challenge to the conditions of confinement, Plaintiffs did

14 make specific allegations of prolonged incarceration. FAC at ¶¶ 69-70. Specifically, Plaintiffs

15 allege that “Defendants‟ restriction and denial of telephone access to immigrants held in ICE

16 custody substantially prolongs Plaintiffs‟ incarceration pending removal hearings [because a]

17 master calendar hearings, Plaintiffs are forced to ask the immigration judge for a continuance to

18 retain counsel, to prepare their cases, or simply to obtain legal advice . . . .” Id. at ¶ 69.

19

In Zadvydas v. Davis, the Supreme Court found that a statute which permitted aliens to be

20 detained following a final order of removal did not permit indefinite detention. 533 U.S. 678, 682,

21 690 (2001). In so ruling, it recognized a six-month (180 days) period in which an alien can be

22 held, after which “once the alien provides good reason to believe that there is no significant

23 likelihood of removal in the reasonably foreseeable future, the Government must respond with

24 evidence sufficient to rebut that showing.” Id. at 701.

25

Subsequent decisions have recognized this six-month incarceration period. For example,

26 in Demore v. Kim, the Supreme Court rejected a respondent‟s habeas corpus action, in which the

27 respondent argued that his detention under section 1226(c) violated due process because no

28 determination had been made that he posed either a danger to society or a flight risk. 538 U.S. 22

1 510, 514 (2003). The Supreme Court distinguished Zadvydas in two respects. First, it explained

2 that Zadvydas dealt with aliens who challenged their detention following final orders of

3 deportation but “for whom removal was „no longer practically attainable.‟” Id. at 527 (quoting

4 Zadvydas, 533 U.S. at 690). In such cases, the purpose of detention (to hold people in preparation

5 for removal) “no longer bears a reasonable relation to the purpose for which the individual was

6 committed” because for those individuals, removal was not possible. Id. (quoting Zadvydas, 533

7 U.S. at 690). By contrast, Demore involved detention of deportable criminal aliens pending their

8 removal proceedings, and “[s]uch detention necessarily serves the purpose of preventing

9 deportable criminal aliens from fleeing prior to or during their removal proceedings, thus

10 increasing the chance that, if ordered removed, the alien will be successfully removed.” Id. at

11 527-28. Second, the Supreme Court concluded that Zadvydas was “materially different” because

United States District Court
For the Northern District of California

12 it involved an indefinite and potentially permanent duration, whereas Demore involved detention

13 “of a much shorter duration.” Id. at 528. It noted that in most cases, detention lasted “less than

14 the 90 days we considered presumptively valid in Zadvydas,” as in 85% of the cases in which

15 aliens were detained pursuant to section 1226(c), removal proceedings were completed in an

16 average time of 47 days and a median of 30 days. Id. at 529. Even in the remaining 15% of cases,

17 in which the alien appealed, the appeal took an average of four months. Id. “In sum, the detention

18 at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it

19 is invoked, and about five months in the minority of cases in which the alien chooses to appeal.”

20 Id. at 530. While the respondent had been detained for six months, the Supreme Court noted that

21 “respondent himself had requested a continuance of his removal hearing.” Id. at 531. Based on

22 these distinctions, the Supreme Court rejected the respondent‟s habeas claim.

23

The Ninth Circuit has also recognized that prolonged incarceration typically requires

24 incarceration of at least 180 days. See Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011);

25 see also Rodriguez v. Robbins, 715 F.3d 1127, 1138 (9th Cir. 2013) (“As a general matter,

26 detention is prolonged when it has lasted six months and is expected to continue more than

27 minimally beyond six months”) (quotation omitted). In Diouf, at issue were DHS regulations that

28 provided for custody reviews within 90 days, 180 days, and 18 months of confinement. Id. at 23

1 1089. During the 90-day removal period, DHS was required to detain the alien, after which

2 continued detention was at the discretion of the Attorney General. Id. The Ninth Circuit found

3 that there were no serious constitutional concerns with the initial 90-day review period because its

4 focus was “on prolonged detention.” Id. at 1091. As to the time between the 90-day and 180-day

5 review period, the Ninth Circuit found that “[d]etention during this period certainly affects aliens‟

6 interests in freedom from confinement, and requires that adequate procedural safeguards be in

7 place to protect against the erroneous deprivation of liberty. But given the relatively limited

8 period of detention involved, and in view of the Mathews factors as a whole, the period afforded

9 by the DHS regulations is adequate.” Id. However, after the 180-day period, the Ninth Circuit

10 found that the alien‟s detention could be prolonged an additional year; thus, “[a]t this point, the

11 alien‟s continuing detention becomes prolonged.” Id.

United States District Court
For the Northern District of California

12

In the instant case, Plaintiffs cite no cases in which a court found a violation of substantive

13 due process for prolonged incarceration that lasted less than the presumptively valid six-month 14 period in the immigration context.13 Here, Plaintiffs themselves present evidence that the average

15 time of detention between June 1, 2014 and May 30, 2015 was about 36 days, and the majority of

16 stays (59%) were less than three weeks. Docket No. 119-6, Exh. A (Levy Report) at ¶ 6. While

17 there are a few individuals who have been detained for more than 180 days, including Mr. Lyon

18 (detained October 2013 and April 2015) and Ms. Neria-Garcia (detained between June 2014 and

19 October 2015), Plaintiffs‟ expert notes that in general, “[m]any detainees are held for very short 20 periods of time, while a few are held for very long periods of time.”14 Id.

21

22 13 Plaintiffs do cite Zavala v. Ridge, 310 F. Supp. 2d 1071 (N.D. Cal. 2004); however, this case

23

was a challenge to a regulation which automatically stayed the IJ‟s decision to grant bond. Id. at 1075. As the district court explained, this automatic stay, “which permits unilateral government

24

detention of individuals without a case-by-case determination after a reasoned finding that they do not pose threat to safety or a risk of flight, violates the Due Process Clause because no special

25

justification exists that outweighs the individual‟s constitutionally protected interest in avoiding physical restraint.” Id. at 1077. In short, Zavala challenged the detention itself, not the length of

26 the detention, which is the issue in this case.

27

14 Notably, even the Mesa Verde numbers, which Dr. Levy notes “are distorted because of the transfer of long-term detainees from other facilities,” note an average stay of 157.4 days, below

28 the 180-day period that the Ninth Circuit found significant.

24

1

Here, it cannot be said that the class is subject to a systemic prolongation of detention

2 which applies “generally to the class” which would make injunctive relief “appropriate respecting

3 the class as a whole,” as contemplated by Fed. R. Civ. P. 23(b)(2). With the exception of the two

4 named Plaintiffs, Plaintiffs‟ evidence shows that the vast majority of detainees are held for less

5 than three weeks. Based on the evidence in the record, Plaintiffs have failed to show that as a

6 class they have established a substantive due process claim based on systemic prolonged 7 detention. Thus, Defendants are entitled to summary judgment on this claim.15

8

2. Procedural Due Process

9

a. Actual Injury Requirement

10

The parties dispute whether Plaintiffs must show an actual injury in order to assert a

11 procedural due process claim, as was required in Lewis v. Casey. In Lewis, the Supreme Court

United States District Court
For the Northern District of California

12 found that the actual right at issue was not the right to a law library and legal assistance programs;

13 instead, access to a law library and legal assistance programs were a “means for ensuring a

14 reasonably adequate opportunity to present claimed violations of fundamental constitutional rights

15 to the courts.” 518 U.S. at 351 (quotation omitted). Thus, to bring a claim, the Supreme Court

16 found that the inmates had to show that they had actually been hindered in pursuing their legal

17 claims, i.e., by demonstrating that an inmate was unable to file a complaint or had a complaint

18 dismissed for failure to observe a technicality. Id. As applied in the instant case, Defendants

19 argue that Plaintiffs must show that telephone restrictions “have actually hindered Plaintiffs from

20 pursuing their cases or requests for release on bond.” Defendants Mot. at 28.

21

Plaintiffs in turn argue that Lewis is distinguishable because that case concerned sentenced

22 prisoners, whereas here Plaintiffs are civil detainees facing immigration proceedings. Plaintiffs

23

24 15 While the Court finds that there is no substantive due process claim, this does not preclude a

25

procedural due process claim. See Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir. 2008) (“Even if Prieto-Romero‟s continued detention is permitted by statute, however, due process

26

requires „adequate procedural protections‟ to ensure that the government‟s asserted justification for physical confinement „outweighs the individual‟s constitutionally protected interest in

27

avoiding physical restraint.‟”). This is particularly so in light of the discussion which follows which concludes the injury requirement to make a procedural due process claims has a degree of

28 flexibility.

25

1 Opp. at 26. The Court agrees. In Benjamin v. Fraser, the Second Circuit declined to apply the

2 Lewis actual injury requirement to a case challenging conditions affecting attorney visitation, use

3 of restraints, restrictive housing, inmate correspondence, and law libraries. 264 F.3d 175, 179,

4 185 (2d Cir. 2001). First, the Second Circuit explained that Lewis did not concern a direct

5 constitutional right, but an opportunity to present claimed violations of constitutional rights. The

6 Benjamin case, however, concerned conditions which interfered with an individual‟s ability to

7 consult with counsel, which itself was a constitutional right. Id. Second, the Second Circuit

8 reasoned that the interest of a convicted prisoner is distinct from the interest of a pretrial detainee;

9 in short:

United States District Court
For the Northern District of California

10

The access claims at issue in Lewis concerned the ability of

11

convicted prisoners to attack their sentences, directly or collaterally,

and to challenge the conditions of their confinement. By contrast,

12

here we are concerned with the Sixth Amendment right of a pretrial

detainee, in a case brought against him by the state to utilize counsel

13

in his defense. It is not clear to us what “actual injury” would even

mean as applied to a pretrial detainee‟s right to counsel. 14

15 Id. at 186 (internal quotations and modifications omitted). In other words, “pretrial detainees need

16 access to the courts and counsel is not to present claims to the courts, but to defend against the

17 charges brought against them.” Id.

18

Here, Plaintiffs are not seeking phone access in order affirmatively to present

19 constitutional claims, like the prisoners in Lewis. Rather, Plaintiffs contend that phone conditions

20 have impaired their right to gather and present evidence in defending themselves against the

21 government‟s effort to deport them. In this context, detainees have a Fifth Amendment guarantee

22 to a full and fair hearing, and this includes access to counsel (of their own choosing). See Oshodi

23 v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (“It is well established that the Fifth Amendment

24 guarantees non-citizens due process in removal proceedings. Therefore, every individual in

25 removal proceedings is entitled to a full and fair hearing. A vital hallmark of a full and fair

26 hearing is the opportunity to present evidence and testimony on one‟s behalf.”) (internal

27 quotations omitted); Rios-Berrios, 776 F.2d at 862 (Although a deportation hearing is not a

28 criminal matter and [an alien] had no Sixth Amendment right to appointment of counsel at 26

1 government expense, due process mandates that [an alien] is entitled to counsel of his own choice

2 at his own expense under the terms of the [INA].”) (citation omitted).

3

Furthermore, like Benjamin, Plaintiffs are not convicted inmates but civil detainees who

4 are defending themselves in proceedings brought by the government. Thus, the Court finds Lewis

5 does not apply, and thus Plaintiffs are not required to show actual injury or actual hindrance of

6 detainees‟ ability to pursue their cases in order to assert a procedural due process claim.

7

Instead, under circumstances outside of Lewis, the Ninth Circuit has held that the court

8 looks not to whether the outcome of a hearing was actually affected by an alleged violation, but at

9 whether “the outcome of the proceeding may have been affected by the alleged violation.”

10 Colmenar, 210 F.3d at 971 (emphasis added); see also Zolotukhin v. Gonzales, 417 F.3d 1073,

11 1076 (9th Cir. 2005) (“For us to grant the petition for review on due process grounds, Petitioner

United States District Court
For the Northern District of California

12 must show prejudice, which means that the outcome of the proceedings may have been affected by

13 the alleged violation.”) (internal quotation omitted) (emphasis in original).

14

In Walters, the Ninth Circuit upheld the district court‟s finding that the INS‟s procedure for

15 obtaining waivers in document fraud cases violated the plaintiffs‟ rights to due process of law.

16 Walters v. Reno, 145 F.3d 1032, 1036 (9th Cir. 1998). There, the plaintiffs brought a class action,

17 alleging that the INS issued complex, confusing forms to aliens charged with violating the INA‟s

18 document fraud provisions, which failed to adequately inform aliens of the steps they had to take

19 in order to contest the charges brought against them. Id. In challenging the district court‟s

20 finding, the government argued that there was insufficient evidence that the plaintiff class suffered

21 prejudice as a result of the constitutionally deficient proceedings. Id. at 1044. The Ninth Circuit

22 found that the issue of prejudice “overlap[ped] with the question whether the plaintiffs suffered

23 actual injury to justify injunctive relief,” before explaining that plaintiffs had made the required

24 showing of prejudice. Id. at 1044 n. 7. It first reiterated that “[w]hen it is necessary to

25 demonstrate prejudice as a result of a constitutional violation, the alien must show that the

26 inadequate procedures occurred in a manner so as potentially to affect the outcome of the

27 proceedings.” Id. at 1044 (emphasis added) (citations omitted). Thus, “there must be plausible

28 scenarios in which the outcome of the proceedings would have been different, absent the 27

1 constitutional violation.” Id. (emphasis added).

2

Thus, Plaintiffs are not required to show actual injury, as defined by Lewis. Instead,

3 Plaintiffs need only establish that the outcome of immigration proceedings may have been affected

4 by the alleged violation. So defined, the Court finds that there is sufficient evidence of prejudice

5 to the class as a result of telephone restrictions. For example, Mr. Lyon stated in his December

6 2013 declaration that he was unable to obtain a police report he needed for his U-visa application,

7 as he was unable to call the East Palo Alto Police Department because the police did not take

8 collect calls. Lyon Dec. at ¶ 8. Mr. Lyon‟s wife, who was assisting him, also could not obtain the

9 police report because the police would only release the report to Mr. Lyon or his legal

10 representative, which he did not have at the time. Id. at ¶¶ 9, 11. It was not until he retained

11 counsel (which at the time of his declaration, he could not afford) that he could obtain the police

United States District Court
For the Northern District of California

12 report.

13

Similarly, B.M. testified that he was able to retain an attorney, but that he was not able to

14 get through to his attorney from the Housing Unit Phones because his attorney did not accept

15 collect calls. Docket No. 120-16 (B.M. Dec.) at ¶¶ 13, 14. Between June 16, 2014 and August 20,

16 2014, B.M. was only able to see his attorney once, when his attorney was at Contra Costa to visit

17 another detainee. Id. at ¶ 15. At this time, B.M.‟s attorney informed him that he had a hearing on

18 August 20, 2014, but they were otherwise unable to speak about what that hearing would entail.

19 Id. at ¶¶ 15-17. At the August 20, 2014 hearing, the IJ informed B.M. that he would need to get

20 documents from Kenya and Somalia; when B.M. explained it would be difficult to make those

21 calls from detention, the IJ said his attorney would help. Id. at ¶ 18. In September 2014, Contra

22 Costa opened the phone room, permitting free calls that were usually limited only to 5-10 minutes.

23 Id. at ¶ 21. B.M. was able to get in contact with his attorney more often, but communication was

24 still difficult because his attorney did not always answer his calls (which were unpredictable due

25 to the limited time and the number of other attorneys who needed to use the phone). Id. at ¶ 22.

26 In December 2014, B.M. learned from an ICE officer that the IJ denied asylum, after which

27 B.M.‟s attorney informed him that he would not help appeal the decision. Id. at ¶ 23. B.M. then

28 began calling free legal service organizations to find another attorney, and learned from a Centro 28

1 Legal de la Raza attorney that a large part of the reason why his asylum case was denied was

2 because he did not prove his evidence with available evidence. Id. at ¶ 24. B.M. states that his

3 attorney did not help him get the evidence to prove his identity (which he could not obtain himself

4 due to phone restrictions), and that B.M. did not realize how ineffective his attorney was because

5 he communicated with his attorney so rarely. Id. at ¶ 25. The Centro Legal de la Raza attorney

6 has since helped get B.M. released on bond and filed a motion to reopen the case based on

7 ineffective assistance of counsel. Id. at ¶ 26.

8

Other declarants have discussed the impacts of limited phone access on their ability to

9 gather evidence, although it is less clear what impact that failure to gather evidence had on the

10 outcome of a hearing. See O.A. Dec. at ¶ 14 (inability to contact a gang prevention program for

11 documents, likely attributable to the gang prevention program‟s refusal to accept a call that stated

United States District Court
For the Northern District of California

12 it was from an unspecified “inmate” at Yuba County Jail); Docket No. 120-11 (J.H. Dec.) at ¶ 12

13 (inability to contact the criminal court and Kern county public defender in order to work on

14 vacating his criminal conviction because the county offices hang up when they hear the recording

15 that the call is from a detention facility); I.P. Dec. at ¶¶ 6, 42-43 (delaying bond hearing by a

16 month because of the delay in gather evidence due to high phone costs; bond was granted at the

17 continued hearing); Docket No. 120-13 (H.S. Dec.) at ¶ 15 (inability to speak freely about his case

18 on Housing Unit phones because his claim for relief is based on sexual orientation, and expressing

19 fear that he would be harassed and physically attacked if his sexual orientation is discovered);

20 Docket No. 120-14 (F.L. Dec.) at ¶ 36 (fear of speaking about his case on Housing Unit Phones

21 because applying for a U-Visa and concerned about being physically attacked if other detainees or

22 county inmates learn that he is cooperating with the police); see also Berg Report at 6 (concluding

23 that “the telephone policies and practices challenged in this case significantly limit the ability of

24 detainees to retain and communicate with counsel and gather evidence for their cases”), 17 (“The

25 detainees I interviewed expressed frustration, resignation, and hopelessness related to the

26 difficulty of pursuing their cases with the limited telephone access provided to them. This

27 situation, many times, motivates detainees to simply sign removal papers”); Supp. Vincent Dec. at

28 ¶ 13 (attorney declaration explaining hesitation to take on complex cases for detained immigrants 29

1 because “telephone access is too unreliable to provide adequate legal representation”); Docket No.

2 120-18 (Lee Dec.) at ¶ 12 (attorney declaration explaining that in her experience, “[i]n comparison

3 to my non detained clients, detained clients are prevented from playing an active role in their

4 removal proceedings because of the current telephone restrictions”); Docket No. 120-22 (Prasad

5 Dec.) at ¶ 12 (attorney declaration stating “[w]e regularly see detainees not represented by counsel

6 denied bond or discretionary relief who, in my experience, may not have been denied if they had

7 been able to contact family to obtain documents”).

8

This evidence, along with the nature and breadth of the systemic phone restrictions and

9 their potential impact upon detainees‟ ability to communicate with counsel, relatives, government

10 agencies, etc., are sufficient to establish a real risk for class members that the restrictions “may” or

11 “potentially” affect the outcome of removal proceedings; there are “plausible scenarios” in which

United States District Court
For the Northern District of California

12 outcomes are affected. Colmenar, 210 F.3d at 971; Zolotukhin, 417 F.3d at 1076; Walters, 145

13 F.3d at 1049.

14

Plaintiffs need not demonstrate every member of the class has suffered from an adverse

15 effect on the outcome of their renewal hearing. The Ninth Circuit has made clear that “[i]t is

16 sufficient if class members complain of a pattern or practice that is generally applicable to the

17 class as a whole. Even if some class members have not been injured by the challenged practice, a

18 class may nevertheless be appropriate.” Walters, 145 F.3d at 1047. This is particularly the case in

19 a Rule 23(b)(2) class action, where the defining feature is whether “the party opposing the class

20 has acted or refused to act on grounds that apply generally to the class . . . . ,” and whether 21 injunctive relief is appropriate respecting the class as a whole. 16 Fed. R. Civ. P. 23(b)(2)

22

23

16 By way of example, if a prison hospital had a policy of not sterilizing its equipment, resulting in significantly increased risk of infection or spread of a disease (such as HIV), the fact that not every

24

class member or even the named plaintiff contracted the disease would not preclude an injunction. Every person, indeed not even a majority of the class, need not be infected with a life-threatening

25

disease before relief may be granted. The purpose of an injunction under Rule 23(b)(2), after all, is to prevent future injury that may occur as a result of the complained of policy. See Dittimus-

26

Bey v. Taylor, 244 F.R.D. 284, 291 (D.N.J. 2007) (prison-crowding case in which the Court found that “Rule 23 does not require that the representative plaintiff have endured precisely the same

27

injuries that have been sustained by the class members, only that the harm complained of be common to the class, and that the named plaintiff demonstrate a personal interest or threat of

28 injury that is real and immediate, not conjectural or hypothetical”).

30

1 (emphasis added). See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988) (“That the claims

2 of individual class members may differ factually should not preclude certification under Rule

3 23(b)(2) of a claim seeking the application of a common policy.”); 7AA Charles Alan Wright et

4 al., Federal Practice and Procedure § 1775 (3d ed. 1998) (“All the class members need not be

5 aggrieved by or desire to challenge defendant‟s conduct in order for some of them to seek relief

6 under Rule 23(b)(2).”). As Professor Rubenstein explained:

United States District Court
For the Northern District of California

7

The first requirement under Rule 23(b)(2) is that “the party opposing

the class has acted or refused to act on grounds that apply generally

8

to the class.” While the Rule looks for grounds that “apply

generally” to the class, it is well-settled that the defendant's conduct

9

described in the complaint need not be directed or damaging to

every member of the class. The framers of the Rule stated that:

10

“Action or inaction is directed to a class within the meaning of this

subdivision even if it has taken effect or is threatened only as to one

11

or a few members of the class, provided it is based on grounds

which have general application to the class.” 12

Courts have followed the Advisory Committee‟s approach, finding

13

that certification of a Rule 23(b)(2) class is proper despite the fact

that not all class members may have suffered the injury posed by the

14

class representatives so long as the challenged policy or practice was

generally applicable to the class as a whole. The requirement

15

focuses on the defendant and questions whether the defendant has a

policy that affects everyone in the proposed class in a similar

16

fashion. That scrutiny ensures that the class‟s interests are related in

a manner that makes aggregate litigation appropriate -- because one

17

class member's litigation will invariably affect everyone in the class

-- and therefore efficient. 18
William B. Rubenstein et al., Newberg on Class Actions § 4:28 (5th ed.) (citations omitted).17

19

20 17 Thus, rights of the class under Rule23(b)(2) are not measured solely by the facts and

21

circumstances of the named representatives. For example, in reviewing mental health care provided by the California prison system, the court in Coleman v. Wilson did not limit its factual

22

findings to the claims of the named plaintiffs; it considered the testimony of inmate witnesses and declarations of expert witnesses, whose reports were based in part on interviews with numerous

23

inmates, unnamed members of the class. No. CIV S-90-0520 LKK JFM P, 1994 U.S. Dist. LEXIS 20786, at *9-12, *23 at fn. 15 (E.D. Cal. June 6, 1994), report and recommendation adopted as

24

modified by Coleman v. Wilson, 912 F. Supp. 1282, 1324 (E.D. Cal. 1995). Similarly, in Plata v. Schwarzenegger, the district court looked at the system as a whole, giving a “few representative

25

examples from the testimonial and documentary evidence” of the effects of inadequate health care in the California prison system; evidence was not confined to the named plaintiffs. Case No. C01-

26

1351 TEH, 2005 U.S. Dist. LEXIS 43796, at *16-19 (N.D. Cal. Oct. 3, 2005); see also OrantesHernandez v. Meese, 685 F. Supp. 1488, 1507 (C.D. Cal. 1988) (reviewing testimony from class

27

members, not just the named plaintiffs, to determine there was a procedural due process violation); Perez-Funez v. Dist. Dir., I.N.S., 619 F. Supp. 656, 657, 661 (C.D. Cal. 1985) (reviewing the

28

testimony of both the named plaintiffs and fourteen other class members to determine whether plaintiffs were signing a voluntary departure form without being advised of their rights). Cf. Moss

31

1

Accordingly, the Court finds that based on the record, there is substantial undisputed

2 evidence of prejudice suffered by the class as a whole based on conduct which applies generally to

3 the class; this is sufficient to satisfy the injury requirement for a procedural due process claim.

4

b. Legal Framework

5

Finding the injury requirement is satisfied starts but does not end the due process inquiry.

6 The Court must examine the merits of the constitutional claim, viewed in the context of a custodial

7 setting.

8

The parties dispute whether in reviewing Plaintiffs‟ due process claim, the Court should

9 apply Mathews v. Eldridge‟s balancing test or Turner v. Safley‟s four-factor test. Mathews

10 requires that the court consider: (1) the interest at stake for the individual, (2) the risk of an

11 erroneous deprivation of the interest through the procedures used as well as the probable value of

United States District Court
For the Northern District of California

12 additional or different procedural safeguards, and (3) the interest of the government in using the

13 current procedures rather than additional or different procedures. 424 U.S. 319, 224 (1976). In

14 contrast, Turner starts with the principle that “[a] prison regulation that impinges on an inmate‟s

15 constitutional right „is valid if it is reasonably related to legitimate penological interests.‟” Valdez

16 v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (quoting Turner v. Safley, 482 U.S. 78, 89

17 (1987)). In determining reasonableness, the court must consider four factors: (1) whether there is

18 a “valid, rational connection” between the prison regulation and the legitimate governmental

19 interest put forward to justify it; (2) whether there are alternative means of exercising the right that

20 remain open to prison inmates; (3) whether accommodation of the asserted constitutional right will

21 have significant impacts on guards, other inmates, and the allocation of prison resources generally;

22 and (4) whether ready alternatives are absent (or whether obvious, easy alternatives exist).

23 Turner, 482 U.S. at 89-90.

24

Mathews and Turner are not mutually exclusive; the application of one test does not

25

26

v. Lane, 471 F.2d 853, 854-55 (4th Cir. 1973) (rejecting trial court‟s conclusion that because the plaintiff had not proved his discrimination case, the class action also failed because “the

27

subsequent dismissal or mootness of his individual claim . . . will not operate as a dismissal or render moot the action of the class, or destroy the plaintiff‟s right to litigate the issues on behalf of

28 the class.”).

32

1 prohibit the use of the other. Instead, the Court finds that in the instant case, application of both

2 Mathews and Turner is necessary. As a predicate to applying the Turner four-factor test, the

3 Court must first find that there is a prison regulation that “impinges on inmates’ constitutional

4 rights.” Turner, 482 U.S. at 89 (emphasis added). If there is no such impingement, then the Court

5 need not reach the Turner four-factor test. The Court must therefore first apply the Mathews

6 balancing test in order to determine if Plaintiffs‟ due process rights have been impinged by the

7 telephone restrictions at issue. If the Court finds that Plaintiffs‟ constitutional rights have been

8 impinged, the Court will then apply the Turner four-factor test.

9

Plaintiffs contend Turner has no application to the case at bar. In Demery v. Arpaio, the

10 Ninth Circuit declined to apply Turner in an action alleging violations of substantive due process

11 based on the installation of live-streaming webcams in a prison facility used exclusively to house

United States District Court
For the Northern District of California

12 pretrial detainees. 378 F.3d 1020, 1024 (9th Cir. 2004). The court found that Turner was

13 inapposite because: (1) “Turner dealt with convicted prisoners, not pretrial detainees,” and (2)

14 “Turner involved an Eighth Amendment cruel and unusual punishment challenge, not a claim

15 brought under the Substantive Due Process Clause of the Fourteenth Amendment.” Id. at 1028-

16 29. However, although the Ninth Circuit has not expressly overruled Demery, the Ninth Circuit

17 has since applied the Turner four-factor test to pre-trial detainees. Pierce v. Cnty. of Orange, 526

18 F.3d 1190, 1209 (9th Cir. 2008); see also Bull v. City & Cnty. of S.F., 595 F.3d 964, 974 n.10 (9th

19 Cir. 2010) (en banc) (“We have never distinguished between pretrial detainees and prisoners in

20 applying the Turner test, but have identified the interests of correction facility officials responsible

21 for pretrial detainees as being „penological‟ in nature. [Citations] While penological interests in

22 punishment or rehabilitation may not be applicable outside of a prison setting, the penological

23 interest in security and safety is applicable in all correction facilities.”); United States v. Loughner,

24 672 F.3d 731, 751 (9th Cir. 2012) (“So long as Loughner is a pretrial detainee, and lawfully held,

25 his rights are limited by the facility‟s legitimate goals and policies, and his dangerousness to

26 himself or to others may be judged by the same standard as convicted detainees.”). The Ninth

27 Circuit has further acknowledged that the Supreme Court has “„made quite clear that the standard

28 of review [in Turner] applies to all circumstances in which the needs of prison administration 33

1 implicate constitutional rights.‟” Bull, 595 F.3d at 974 (quoting Washington v. Harper, 494 U.S.

2 210, 224 (1990)); see also Washington, 494 U.S. at 224 (principles articulated in Turner “apply in

3 all cases in which a prisoner asserts that a prison regulation violates the Constitution, not just those

4 in which the prisoner invokes the First Amendment.”).

5

The Court thus finds that the appropriate legal framework is to first apply the Mathews

6 balancing test to determine if the complained of phone restrictions would result in a putative

7 constitutional violation. If it does, the Court must apply Turner to determine whether the phone

8 restrictions which impinges upon due process rights nonetheless may be upheld because they are 9 “reasonably related to legitimate penological interests.”18 482 U.S. at 89.

10

c. Application

11

i. Mathews and Constitutional Violation

United States District Court
For the Northern District of California

12

The threshold question is whether the complained of regulations violate detainees‟

13

14 18 Plaintiffs contend, however, that they are unaware of any cases that have applied Turner

15

deference to detention conditions of civil detainees who alleged that their conditions impacted procedural rights in pending civil proceedings. Docket No. 160 (Plaintiffs Supp.) at 1 fn. 1. As

16

discussed above, the Supreme Court has taken a broad view that Turner should apply to all circumstances in which the needs of prison administration implicate constitutional rights, and that

17

Turner is a recognition of “the need to reconcile our longstanding adherence to the principle that inmates retain at least some constitutional rights despite incarceration with the recognition that

18

prison authorities are best equipped to make difficult decisions regarding prison administration.” Washington, 494 U.S. at 223-24. The Supreme Court has long recognized the government‟s

19

interest in “manag[ing] the facility in which the individual is detained . . . . For example, the Government must be able to take steps to maintain security and order at the institution and make

20

certain no weapons or illicit drugs reach detainees.” Bell v. Wolfish, 441 U.S. 520, 540 (1979); see also Turner, 482 U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking that

21

requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is,

22

moreover, a task that has been committed to the responsibility of these branches, and separation of powers concerns counsel a policy of judicial restraint.”). In order to give the necessary deference

23

to the government‟s interests in institutional order and security, the Court will apply the Turner four-factor test. Compare with Flemings v. Gray, 1:14-cv-01248 LJO DLB PC, 2015 U.S. Dist.

24

LEXIS 93433, at *9 (E.D. Cal. July 17, 2015) (reviewing claim for deprivation of property without procedural due process and finding that “[a]uthorized deprivations of property are

25

permissible if carried out pursuant to a regulation that is reasonably related to a legitimate penological interest); Casper v. Baker, 3:12-cv-00204-LRH-VPC, 2013 U.S. Dist. LEXIS 183058,

26

at *31 (D. Nev. Aug. 23, 2013), report and recommendation adopted by Casper v. Baker, 2014 U.S. Dist. LEXIS 3108 (D. Nev. Jan. 10, 2014) (same); Patrick v. Bonner Cnty. Sheriff’s Dep’t,

27

Case No. 2:11-cv-00113-EJL-REB, 2013 U.S. Dist. LEXIS 84027, at * (D. Idaho June 13, 2013) (same); Dudley v. Cesolini, No. CV 11-0387-PHK-SMM (LOSA), 2012 U.S. Dist. LEXIS

28 190818, at *15 (D. Ariz. May 11, 2012) (same).

34

1 constitutional rights, in this case their due process right to a full and fair hearing and access to

2 counsel. See Compl. at ¶¶ 100-109. Again, Mathews requires that the court consider three factors:

3 (1) the interest at stake for the individual, (2) the risk of an erroneous deprivation of the interest

4 through the procedures used as well as the probable value of additional or different procedural

5 safeguards, and (3) the interest of the government in using the current procedures rather than

6 additional or different procedures. 424 U.S. at 224.

7

The Ninth Circuit has found that “conclusions regarding the due process . . . claims present

8 mixed questions of law and fact since they involve a determination of whether factual findings

9 satisfy undisputed rules of law.” Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583,

10 587 (1992) (applying Mathews to due process claim). In particular, when there are factual

11 disputes underlying legal determinations, such questions must be resolved by the factfinder. See

United States District Court
For the Northern District of California

12 Wheaton v. Webb-Petett, 931 F.2d 613, 617 (9th Cir. 1991) (remanding plaintiff‟s due process

13 claim because the plaintiff “has raised genuine factual issues on whether his constitutional right to

14 pretermination process was respected”).

15

(a) Plaintiffs‟ Interests

16

The parties do not appear to seriously dispute that Plaintiffs have a significant interest in

17 avoiding deportation, the ultimate consequence and hence interest at stake. In applying Mathews

18 in the immigration context, the Ninth Circuit has found that “[i]t is clear that the plaintiffs‟

19 interests in this case are significant.” Walters, 145 F.3d at 1043 (citing Landon v. Plasencia, 459

20 U.S. 21, 34 (1982) (alien‟s interest in deportation proceedings “is, without question, a weighty

21 one” because “[s]he stands to lose the right to stay and live in this land of freedom [and] may lose

22 the right to rejoin her immediate family, a right that ranks high among the interests of the

23 individual.”)). Thus, the Court finds that Plaintiffs have a significant interest.

24

(b) Risk of Erroneous Deprivation of Rights

25

Plaintiffs next argue that the telephone restrictions create a risk of depriving Plaintiffs of

26 their rights because they “effectively den[y] Plaintiffs a means of accessing the counsel and

27 evidence needed to present their cases.” Plaintiffs Mot. at 30. However, as to this factor, the

28 Court finds that there are numerous factual disputes that make summary judgment on this issue 35

United States District Court
For the Northern District of California

1 inappropriate at this time. First, there are outstanding disputes at each of the facilities as to the 2 adequacy of the private phone options at each of the Facilities. Specifically, the parties dispute 3 whether detainee calls are limited to attorneys only at both Contra Costa and Mesa Verde, the 4 availability of phone rooms at Contra Costa, and whether RCCC and Yuba‟s private phone options 5 are in fact private. The availability of private phone options can affect detainees in a number of 6 ways; for example, detainees have testified that their inability to communicate with their attorneys 7 was specifically the result of the lack of privacy, especially when the case involves sensitive 8 personal information that could lead to physical harm. E.g., Docket No. 120-12 (I.P. Dec.) at ¶¶ 9 36-38 (RCCC detainee explaining difficulty in communicating with his attorney due to lack of 10 privacy because his case involved sensitive personal information concerning his sexual 11 orientation, and did not want his sexuality known in a jail setting due to fear of harm from other 12 detainees or deputies); H.S. Dec. at ¶ 15 (RCCC detainee explaining difficulty using non-private 13 phones to discuss his case with his attorneys as his claim was based on his sexual orientation, and 14 had previously been harassed and physically attacked because of his sexual orientation). There is 15 also evidence that limiting the private phones to attorney calls only – another factual issue in 16 dispute – can impede individuals from gathering evidence, particularly individuals who have no 17 attorney or when the private phone is the only available phone option without a positive 18 acceptance requirement. See Lyon Dec. at ¶ 8 (Contra Costa detainee explaining inability to call 19 the East Palo Alto Police Department to obtain a police report he needed for his U-visa application 20 because the department did not accept collect calls); Docket No. 120-8 (M.G. Dec.) at ¶ 13 21 (RCCC detainee explaining inability to call extended family members, Fresno Police Department, 22 and corroborating witness to gather evidence for his U-visa case); Docket No. 120-6 (O.A. Dec.) 23 at ¶ 14 (Yuba detainee explaining inability to contact gang prevention program for evidence likely 24 because the program did not want to accept a call from an unspecified inmate at Yuba County 25 Jail); Docket No. 120-5 (R.K. Dec.) at ¶¶ 19-20 (Contra Costa detainee explaining inability to call 26 contacts at the Marin County Probation Department and Health and Human Services Department 27 for support in bond hearing because they would not accept a collect call). These disputes over the 28 actual availability of private phone options may affect the due process analysis.
36

1

The Court also finds that the record on notice is not fully developed. For example, during

2 the hearing on this matter, the parties debated whether Plaintiffs had demonstrated any harm based

3 on the ban on three-way calling. Docket No. 157 at 38:20-14. Defendants argued that Plaintiffs

4 had failed to “point[] to any facts where the request was made to make a three-way call to use an

5 interpreter for legal purposes,” to which Plaintiffs responded that detainees are informed by

6 policies and handbooks that three-way calling is prohibited, and thus would not think that is an

7 available option to request. Id.; see also id. at 47:4-14 (Defendants argument that there is no

8 evidence detainees asked to use the private phones to connect with counsel who were not on the

9 pro bono platform, to which Plaintiffs responded that many detainees did not even know there was

10 a private phone option until informed by other detainees or an ACLU lawyer). In short, even

11 assuming that these options are available (which was not clear from the record), if detainees are

United States District Court
For the Northern District of California

12 not informed of the availability and are even given legitimate reasons to believe that they are not

13 available (whether by wrong information being stated in detainee handbooks, postings, or staff), it

14 may be difficult for Defendants to argue that there is no evidence of harm simply because no

15 detainee has ever asked for an accommodation that they were explicitly told was prohibited.

16

Because there are outstanding factual disputes which may materially affect whether there is

17 a risk of erroneous deprivation, the Court finds that summary judgment is not appropriate at this

18 time.

19

(c) Government Interest

20

Finally, the Court must consider the government‟s interest in using the current procedures

21 rather than additional or different safeguards. The Supreme Court has recognized that “[t]he

22 government‟s interest in efficient administration of the immigration laws at the border also is

23 weighty.” Landon, 459 U.S. at 34. It has also found that “[t]he Government also has legitimate

24 interests that stem from its need to manage the facility in which the individual is detained . . . . For

25 example, the Government must be able to take steps to maintain security and order at the

26 institution and make certain no weapons or illicit drugs reach detainees.” Bell, 441 U.S. at 540.

27 Furthermore, “[s]triking a balance between these two strong competing interests cannot be done in

28 the abstract.” Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 980 (9th 37

1 Cir. 2012). The Court must “carefully assess the precise „procedures used‟ by the government,

2 „the value of additional safeguards,‟ and „the burdens of additional procedural requirements.‟” Id.

3

The Court finds that there are a number of outstanding disputes with respect to the

4 government‟s interest. For example, there is an issue regarding the calling rates. Defendants do

5 not appear to provide any justification for the rates, instead arguing that they are irrelevant given

6 the FCC‟s regulations. Defendants Mot. at 13. Defendants argued that issues regarding cost “will

7 soon be largely irrelevant . . . because the Federal Communications Commission („FCC‟) has

8 undertaken regulation of inmate and detainee calling, which would impose caps on interstate and

9 intrastate calling rates and eliminate connection fees. Defendants Mot. at 13; FCC, 15-136, Rates

10 for Interstate Inmate Calling Services, at ¶¶ 22, 101, available at

11 http://apps.fcc.gov/edocs_public/attachmatch/FCC-15-136A1.pdf (last accessed Feb. 2, 2016);

United States District Court
For the Northern District of California

12 Docket No. 120-24, Exh. A (Wood Report) at 12 (table of rate caps). Plaintiffs‟ expert, Mr.

13 Wood, agreed that “the recent action by the FCC . . . represents a useful tool that will help ensure

14 reasonable rates for ICS [Inmate Calling Services].” Wood Report at 12. The rules and

15 requirements governing rates and connection fees were to be made effective on June 20, 2016.

16 Defendants Reply at 7 n.10; FCC, WC Docket No. 12-375, Wireline Competition Bureau

17 Announces the Comment Cycle and Effective Dates for the Inmate Calling Second Report and

18 Order and Third FNPRM, at 2, available at http://apps.fcc.gov/edocs_public/attachmatch/DA-15-

19 1484A1.pdf (last accessed Feb. 2, 2016). However, given the D.C. Circuit‟s decision staying

20 implementation of the FCC regulations, this issue will need to be fully developed to determine

21 what, if any, government interest exists for justifying the phone costs. See Docket No. 161-1

22 (order staying FCC, 15-136).

23

With respect to the automatic cutoffs at Contra Costa, Defendants argue that time limits on

24 call duration promote safety and security by reducing the possibility of fights for telephone access

25 while promoting equitable access to phones. Defendants Mot. at 15. Yet Plaintiffs have presented

26 evidence showing that Contra Costa‟s officials were unable to explain why there is a cutoff on the

27 Talton Free Call Platform, and stated that the cutoff “doesn‟t make any sense.” Ha Dec., Exh. 37

28 (Grant Dep.) at 77:4-18. Plaintiffs further argue that short cut-offs are also not applied across-the38

1 board; for example, Mesa Verde has a 180-minute limitation, which is only in place to prevent

2 people from forgetting to hang up the phone. Docket Yee-Garcia Dec., Exh. 60 (Talton Dep.) at

3 155:11-19 (explaining that the security precaution for the 180-minute limit is so that detainees

4 “can‟t leave the phone off the hook. You know, after they get on the phone, they just drop the

5 phone. Let‟s say they walk away, and the next day, you know, the clock is still ticking, you know.

6 So in other words, the call has to end at some point.”). It is unclear whether there is sufficient

7 justification where the limitations appear to vary widely. Given that all reasonable inferences

8 must be drawn against the non-moving party, summary judgment is not appropriate.

9

There is also a dispute as to whether there is any government interest in Contra Costa‟s

10 requirement that Housing Unit Phones be paid for by the recipient, which has affected the ability

11 of detainees to obtain information if the recipient is not willing (or able) to pay for the call, even if

United States District Court
For the Northern District of California

12 the detainee is willing to pay for the call. Defendants only explain that Contra Costa doesn‟t have

13 the ability to assign a pin number to the detainees, but is “currently exploring obtaining a new jail

14 management system.” Defendants Mot. at 15. It is not clear that this is a legitimate governmental

15 purpose, but Defendants at this juncture is entitled to the benefit of reasonable inferences.

16

Similarly, it is unclear whether the time restrictions on when detainees can access phones

17 are reasonably related to a government interest, particularly with respect to Contra Costa.

18 Defendants argue they have an interest in limited hours to ensure that violent or unruly individuals

19 are segregated, or to protect individuals from other detainees who may harm them. However, the

20 applicability of this policy to the Facilities raises some questions; as Plaintiffs point out, Contra

21 Costa imposes the greatest time restrictions on detainees use of their Housing Unit Phones (with

22 only 1.5 hours during regular business hours); yet Contra Costa has the lowest percentage of

23 medium-high and high risk prisoners. Plaintiffs Opp. at 14; see Shinners Dec., Exh. 32. The

24 record on this point is spare.

25

Finally, there is an overarching question of whether application of the ICE‟s 2011

26 Performance Based National Detention Standards (2011 PBNDS) could be readily implemented, a

27 question which goes to whether the government has an interest in using the current procedures

28 rather than additional or different procedures. See U.S. Immigration and Customs Enforcement, 39

1 Performance-Based National Detention Standards 2011, available at

2 https://www.ice.gov/detention-standards/2011 (last accessed Feb. 5, 2016). Currently, RCCC,

3 Yuba, and Contra Costa must comply with ICE‟s 2000 National Detention Standards (2000 NDS),

4 while Mesa Verde must comply with the 2011 PBNDS. Plaintiffs Mot. at 18; Hackett Report at ¶

5 5. Plaintiffs argue that the 2011 PBNDS “require many of the outcomes Plaintiffs seek in this

6 litigation.” Id. at 19. This includes reasonably priced telephone calls (2011 PBNDS at §

7 5.6.V.A.2); providing direct or free calls to offices, including federal and state courts, legal

8 representatives, legal services, and government offices to obtain relevant documents (2011

9 PBNDS at § 5.6.V.E); providing private legal calls (2011 PBNDS at § 5.6.V.F.2); allowing

10 incoming legal calls and messages (2011 PBNDS at § 5.6.V.J); and providing adequate notice of

11 telephone access opportunities, including in other languages (2011 PBNDS at § 5.6.V.C).

United States District Court
For the Northern District of California

12 Plaintiffs‟ expert, Mr. Berg, explains that while the 2000 NDS and 2011 PBNDS both “require

13 reasonable and equitable access to telephones and prohibit facilities from unduly limiting a

14 detainee‟s efforts to obtain legal representation, the newer standards are significantly more

15 detailed, which makes expectations for detention facilities more clear.” Berg Report at 20. Thus,

16 the 2011 PBNDS are “generally more rigorous than the 2000 NDS because ICE recognized that

17 there were opportunities for improvement and best practices had evolved since the issuance of the

18 2000 NDS.” Id. at 20 (citation omitted).

19

However, the parties‟ experts dispute whether the 2011 PBNDS can be readily

20 implemented. For example, Plaintiffs‟ expert opines that the fiscal and administrative costs to

21 adopt better procedures, such as the 2011 PBNDS, and hire additional staff would be minimal.

22 Berg Report at 26-29. Mr. Berg takes the daily income of the RCCC, Contra Costa, and Yuba

23 facilities for housing ICE detainees, and compares it with the average starting annual salary for a

24 correctional officer for these counties. Id. at 28. Based on these numbers, Mr. Berg contends that

25 it will take RCCC 4.3 contract days to pay for one correctional officer, Contra Costa 3.6 contract

26 days to pay for one correctional officer, and Yuba 2.7 days to pay for one correctional officer.

27 Defendants‟ expert, Mr. Hackett, counters that Mr. Berg‟s calculations ignore the costs of jail

28 operations and employee costs beyond base salary, such as benefits, recruitment, and training. 40

1 Hackett Report at ¶ 34. Mr. Hackett also argues that implementation of the 2011 PBNDS is

2 affected by factors other than cost, such as facility construction, geographic location, and staffing

3 limitations. Id. at ¶ 33.

4

There are disputes of material fact in the record as to the government‟s interest. This

5 together with the requirement that all reasonable inferences must be drawn against the moving

6 party where the record is inconclusive requires the summary judgment be denied. Moreover,

7 application of the Matthews balancing test is a mixed question of law and fact which is normally

8 for the trier of fact to decide. See Nat’l Ass’n of Radiation Survivors, 994 F.2d at 587.

9

ii. Turner “Rationally Related to a Legitimate Penological Objective”

10

In addition to the dispute over the application of Mathews, there are disputes as to whether

11 Defendants could satisfy the four-factor Turner test.19 Like the Mathews balancing test, the Ninth

United States District Court
For the Northern District of California

12 Circuit has found that the Turner four factor test is a mixed question of law and fact. See

13 Friedman v. Arizona, 912 F.2d 328, 331 (9th Cir. 1990), superseded by statute on other grounds

14 (finding that whether a particular regulation “impermissibly restricts [the plaintiffs‟] first

15 amendment right is a mixed question of law and fact” and applying Turner). However, “[t]he

16 legitimacy of prison officials‟ asserted penological interests are findings of fact. Henderson v.

17 Terhune, 379 F.3d 709, 712 (9th Cir. 2004); see also Cal. First Amend. Coal. v. Woodford, 299

18 F.3d 868, 880 (9th Cir. 2002) (finding that the district court‟s findings on whether there was a

19 ready alternative to the challenged procedure under Turner constituted factual findings).

20

In Hrdlicka v. Reniff, the Ninth Circuit overturned the district court‟s grant of summary

21 judgment, finding that there were “questions of material facts” as to the district court‟s application

22 of Turner. 631 F.3d 1044, 1046 (9th Cir. 2011). There, the publisher of the magazine “Crime,

23 Justice & America” (CJA) brought suit against two county jails that refused to distribute

24 unsolicited copies of CJA to its inmates, alleging First Amendment violations. Id. After

25 recognizing the existence of a First Amendment interest, the Ninth Circuit looked at each of the

26

27 19 This is unsurprising, given that neither party briefed how Turner would apply in practice to the 28 instant case, as Defendants did not raise the issue until after briefing was completed.
41

1 Turner factors.

2

The first Turner factor, which requires a “valid, rational connection” between the prison

3 regulation and the government interest, “is a sine qua non: If the prison fails to show that the

4 regulation is rationally related to a legitimate penological objective, we do not consider the other

5 factors.” Id. at 1051 (internal quotation omitted). The Ninth Circuit looked at each of the

6 justifications forwarded by the county jails. First, the jails asserted that refusing to distribute

7 unsolicited copies of CJA promoted jail security by reducing the likelihood of contraband entering

8 the jail and the amount of clutter (thereby reducing the risk of fires and promoting efficient cell

9 searches). While the Ninth Circuit did not question the importance of these goals, it found that the

10 defendant‟s general statements were “undercut by the specific evidence they offer in an attempt to

11 show the degree to which these purposes are actually served by a refusal to allow the requested

United States District Court
For the Northern District of California

12 distribution of CJA.” Id. The Ninth Circuit pointed to one of the jail‟s decision to stop

13 distributing unsolicited copies of newspapers, noting that the decision was based on the monetary

14 cost and not security risks. Id. It also found that the other prison had admitted that inmates had

15 access to paper that they could use for improper purpose, and that there was no specific evidence

16 that distribution of CJA would increase the rate of misuse of paper. Id. at 1052. Second, the jails

17 asserted that allowing delivery of unsolicited copies of CJA would require additional staff time.

18 The Ninth Circuit rejected this as well, as there was no estimate of how many additional personnel

19 hours would be required for CJA to be delivered. Furthermore, neither jail had suggested that

20 unsolicited publications were more difficult to inspect than solicited publications. Id. at 1053.

21 Third, one of the jails argued that accepting unsolicited CJA would create a “slippery slope” that

22 would require the jail to accept other unsolicited publications. Id. However, the Ninth Circuit

23 pointed out that this “slippery slope” problem was not a concern when the jail accepted or ceased

24 accepting unsolicited copies of newspapers, and that there had only been three requests to

25 distribute unsolicited publications. Id. Finally, one of the jails contended that it had an interest in

26 maintaining control over advertising of bail in the jail, as the jail had an existing contract with an

27 organization to operate bulletin boards on which bail bond agents could post advertisements. Id.

28 The Ninth Circuit found that it was not clear how distribution of CJA would be inconsistent with 42

1 that contract, and that in any case, there was no legitimate penological interest “in protecting a

2 profit made by impinging on inmates‟ First Amendment rights.” Id.

3

The Ninth Circuit then reviewed the second Turner factor, which looked at whether other

4 avenues are available for the exercise of the asserted right. Id. Although the jails argued that CJA

5 could still be distributed to inmates who request it, “there is a material question of fact whether, as

6 a practical matter, Plaintiffs can effectively reach county jail inmates if they can delivery CJA only

7 upon request.” Id. at 1054. Specifically, the Ninth Circuit noted that it is difficult to create broad

8 awareness of CJA when inmate populations turn over quickly, resulting in many inmates having

9 left the jail before they could learn about CJA‟s existence, request it to be sent, and then receive it.

10 Id.

11

The Ninth Circuit also found “material questions of fact” as to the third Turner factor,

United States District Court
For the Northern District of California

12 which looks at the impact accommodation of the asserted constitutional right will have on guards

13 and other inmates. Id. Specifically, the Ninth Circuit explained that there were questions about

14 “whether, and to what degree, the jails should be forced to expend significant additional resources

15 if CJA was delivered by either of the two methods sought by Plaintiffs.” Id. For example, the

16 publisher had proposed delivering only one copy of CJA for every ten inmates each week, and

17 offered to either do a general delivery or individually addressed mailings. Id. The jails, in turn,

18 had not explained how mail inspectors would distinguish between a copy of CJA that is solicited

19 and that is not, or why a complete ban on unsolicited mail did not consume more prison resources

20 than accepting such mail if the jail had to compile subscription lists and compare incoming mail to

21 those lists. Id.

22

Finally, the Ninth Circuit analyzed the fourth Turner factor, which looked at whether there

23 was the existence of easy and obvious alternatives which would indicate that the challenged

24 regulation is an exaggerated response by prison officials. Id. “„This is not a “least restrictive

25 alternative” test: prison officials do not have to set up and then shoot down every conceivable

26 alternative method of accommodating the claimant‟s constitutional complaint.‟” Id. at 1054-55

27 (quoting Turner, 482 U.S. at 90-91). However, an alternative that fully accommodates the

28 asserted rights at de minimis cost suggests that the regulation does not satisfy the reasonable 43

1 relationship standard. Id. at 1055. As applied in Hrdlicka, the Ninth Circuit found that it was

2 undisputed that CJA was distributed in more than 60 countries throughout 13 states, including 32

3 California county jails, thus “suggest[ing] that the response of the two jails in this case may be

4 exaggerated.” Id. Further, the “weak, and to some degree contradictory, specific evidence”

5 offered by the jails in support of their cited penological purposes suggested that the challenged

6 policies were an exaggerated response. Id. Taken together, the Ninth Circuit concluded that the

7 jails were not entitled to summary judgment.

8

In the instant case, the parties raise similar questions as to whether the asserted regulations

9 are reasonably related to the penological purposes being asserted by Defendants. In general, the

10 Supreme Court has recognized that the government has legitimate interests in managing detention

11 facilities, including the maintenance of security and order at the institution. See Bell, 441 U.S. at

United States District Court
For the Northern District of California

12 540. There is also evidence that the government has an interest in controlling phone use in

13 particular, including to prevent inmates from making threatening or harmful calls to the

14 community. Shinners Dec., Exh. 33 (Berg Dep.) at 46:23-47:18, 50:14-20, 122:11-17; see also

15 generally Shinners Dec., Exh. 34 (Hackett Report).

16

However, as discussed above, there are several disputes as to specific justifications made

17 by Defendants for various technical limitations, such as whether there is a penological interest in

18 the time limits, Contra Costa‟s requirement that calls made from Housing Unit Phones be paid for

19 by a recipient, and time restrictions on when detainees can access phones. There is also a

20 significant question as to whether the 2011 PBNDS can be readily implemented, a question which

21 goes to whether Defendants‟ telephone policies are an “exaggerated response” where there is an

22 obvious alternative. Viewed as a whole, the Court finds that there are disputes of material fact

23 which make summary judgment improper in the instant case, particularly in view of the reasonable

24 inferences that must be drawn in the non-moving party‟s favor along with the fact that application

25 of Turner is a mixed question of law and fact.

26 D. Right to Petition

27

Plaintiffs contend that per their right to petition the government for redress of grievances,

28 they have a right to obtain governmental records, benefits, or actions, as well as hire and consult 44

1 attorneys. Plaintiffs Mot. at 46. Defendants in turn contend that an application for immigrant

2 status is not a lawsuit or airing of a political grievance, but is an affirmative application for a

3 discretionary benefit from the government, which should not be considered a petition for redress

4 of grievances. Defendants Mot. at 36-37. However, the Ninth Circuit has found that “the First

5 Amendment extends to the right to petition an administrative agency . . . .” Nat’l Ass’n of

6 Radiation Survivors, 994 F.2d at 595 (concerning applications for Veterans‟ Administration

7 benefits based on exposure to ionizing radiation during service). Given the stakes at issue in

8 removal proceedings, the Court sees no reason why the right to petition does not apply here. The

9 Court therefore finds that the petition clause can extend to the immigration proceedings which

10 Plaintiffs allege are impacted by telephone restrictions.

11

However, for the same reasons discussed with respect to Plaintiffs‟ procedural due process

United States District Court
For the Northern District of California

12 clause, the Court finds that summary judgment on Plaintiffs‟ First Amendment claim is

13 inappropriate at this time. In National Association of Radiation Survivors, the Ninth Circuit found

14 that both the due process and First Amendment claims were about “meaningful access to the VA

15 benefits process,” such that “the focus of the First Amendment analysis is essentially the same as

16 that under the Due Process Clause.” 994 F.2d at 595. As the Ninth Circuit had already

17 determined that there was no due process violation, it summarily found that there was no First

18 Amendment violation. Id. As in National Association of Radiation Survivors, the focus of

19 Plaintiffs‟ First Amendment claim is essentially the same as that under the due process clause, as

20 both claims are related to how telephone restrictions affect detainees‟ ability to gather evidence to

21 present at their immigration hearing and to contact, retain, and consult with attorneys. See Compl.

22 at ¶¶ 103 (due process claim based on Defendants having “violated Plaintiffs‟ right to

23 representation of counsel by denying and severely restricting Plaintiffs‟ ability to make telephone

24 calls to locate, consult with, and retain counsel, and Plaintiffs‟ ability to communicate with

25 retained counsel”); 108 (due process claim based on Defendants having “violated Plaintiffs‟ right

26 to a full and fair hearing by denying and severely restricting Plaintiffs‟ ability to make telephone

27 calls to gather information and obtain evidence in support of their immigration cases); 112 (First

28 Amendment claim based on Defendants having “violated Plaintiffs‟ right to petition the 45

1 government by denying and severely restricting the telephone access necessary to seek legal

2 representation and obtain documents and evidence in support of their applications for immigration

3 benefits”). For the reasons the Court denies summary judgment on Plaintiffs‟ procedural due

4 process claim, it denies summary judgment on the First Amendment claim.

5

IV. CONCLUSION

6

The Court GRANTS Defendants‟ motion for summary judgment with respect to Plaintiffs‟

7 INA statutory claims and substantive due process claims. Based on undisputed facts, the Court

8 finds Plaintiffs have satisfied the injury requirement for a procedural due process claim. However,

9 the Court DENIES the cross-motions for summary judgment with respect to Plaintiffs‟ procedural

10 due process and First Amendment claims for the reasons stated above.

11

Having viewed the record, the Court observes that there do not appear to be many issues of

United States District Court
For the Northern District of California

12 dispute with respect to present conditions in the Facilities. The primary factual disputes under the

13 Matthews analysis concern, as the Court noted, the availability of private phone options and how

14 much notice is provided to detainees about the available phone options. As to Turner, there are a

15 number of factual disputes and an inclusive record relative to the justification and penological

16 interests asserted by Defendants.

17

The Court thus ORDERS the parties to meet and confer, in order to reach a stipulation to

18 undisputed facts (as found and set forth in this Order) for trial and to determine which specific

19 facts need to be tried. Those areas should be limited in scope as indicated herein, and the evidence

20 for trial herein shall be so limited. The Court will also set a Case Management Conference for

21 March 23, 2016 at 10:00 a.m. to delineate the scope and nature of the trial.

22

This order disposes of Docket Nos. 120 and 139.

23

24

IT IS SO ORDERED.

25

26 Dated: March 18, 2016

27

______________________________________

EDWARD M. CHEN

28

United States District Judge

46

 
 Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 1 of 44
CLOSED,REFSET−DMR
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:13−cv−05878−EMC

Lyon et al v. U.S. Immigration and Customs Enforcement et al Assigned to: Hon. Edward M. Chen Referred to: Magistrate Judge Donna M. Ryu (Settlement) Cause: 08:1252(a)(2) Injunction for Deportation
Plaintiff

Date Filed: 12/19/2013 Date Terminated: 11/18/2016 Jury Demand: None Nature of Suit: 560 Prisoner Petitions: Civil Detainee: Conditions of Confinement Jurisdiction: U.S. Government Defendant

Audley Barrington Lyon, Jr. on himself and all others similarly situated

represented by Robert P. Varian Orrick Herrington & Sutcliffe LLP 405 Howard Street San Francisco, CA 94105 415−773−5700 Fax: 415−773−5759 Email: rvarian@orrick.com TERMINATED: 11/19/2019 LEAD ATTORNEY

Alexis Jeuk−Ling Yee−Garcia Orrick, Herrington and Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, CA 94105 United Sta 415−773−5700 Fax: 415−773−5759 Email: aygarcia@orrick.com TERMINATED: 11/19/2019

Angelica Salceda ACLU of Northern California POB 188 Fresno, CA 93707 559−554−2994 Fax: (415) 255−8437 Email: asalceda@aclunc.org ATTORNEY TO BE NOTICED

Ariel Brianna Winawer 1175 N Lemon Ave Menlo Park, CA 94025 650−485−9596 Email: awinawer@orrick.com ATTORNEY TO BE NOTICED

Carl Takei American Civil Liberties Union National Prison Project 915 15th St., NW 7th Floor Washington, DC 20005 United Sta 202−393−4930 Fax: 202−393−4931 Email: ctakei@aclu.org TERMINATED: 11/19/2019

Charles J Ha

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 2 of 44
Orrick Herrington and Sutcliffe LLP 701 Fifth Avenue Suite 5600 Seattle, WA 98104 206−839−4300 Email: charlesha@orrick.com TERMINATED: 11/19/2019
Christine Melissa Smith Orrick Herrington and Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, CA 94105 415−773−5700 Fax: 415−773−5759 Email: cmsmith@orrick.com TERMINATED: 11/19/2019
Christine Patricia Sun ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: csun@aclunc.org TERMINATED: 11/19/2019
Christopher Joseph Siebens Orrick Herrington Sutcliffe 1152 15th Street NW Washington, DC 20005 202−339−8403 Email: csiebens@orrick.com TERMINATED: 11/19/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
David S Keenan Orrick Herrington Sutcliffe 701 Fifth Avenue, Suite 5600 Seattle, WA 98104−7097 206−839−4300 Email: dkeenan@orrick.com TERMINATED: 11/19/2019 PRO HAC VICE
Derek Evan Wetmore Orrick Herrington and Sutcliffe 405 Howard Street San Francisco, CA 94105 United Sta 415−773−5853 Email: dwetmore@orrick.com ATTORNEY TO BE NOTICED
Emily K Brown Orrick 777 South Figueroa Street Suite 3200 Los Angeles, CA 90017 (213) 612−2347 Fax: (213) 612−2449 Email: emily.brown@orrick.com TERMINATED: 11/19/2019

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 3 of 44
Eunice Hyunhye Cho American Civil Liberties Union National Prison Project 915 15th St. NW Washington, DC 20005 202−548−6616 Email: echo@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jaya N. Kasibhatla Orrick, Herrington, Sutcliffe LLP 51 West 52nd Street New York, NY 10019 212−506−3771 Email: jkasibhatla@orrick.com TERMINATED: 11/19/2019 PRO HAC VICE
Jingni (Jenny) Zhao ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−1478 Email: jzhao@aclunc.org TERMINATED: 07/30/2014
Julia Harumi Mass American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org TERMINATED: 10/15/2018
Marc Van Der Hout Van Der Hout, LLP 180 Sutter Street, Suite 500 San Francisco, CA 94104 (415) 981−3000 Fax: (415) 981−3003 Email: ndca@vblaw.com ATTORNEY TO BE NOTICED
Megan Elaine Sallomi Lawyers' Committee for Civil Rights of San Francisco Ba 131 Steuart St., Suite 400 San Francisco, CA 94105 415−9543−9444 Fax: 415−543−0296 Email: megans@bronxdefenders.org TERMINATED: 08/30/2016
Michael Temple Risher ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: michael@risherlaw.com

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 4 of 44

Plaintiff
Edgar Cornelio on himself and all others similarly situated TERMINATED: 02/11/2015

TERMINATED: 11/19/2019
Sean Connor Riordan ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94105 (415) 621−2493 Fax: (415) 255−1478 Email: sriordan@aclunc.org ATTORNEY TO BE NOTICED
Shannon Christine Leong Orrick Herrington and Sutcliffe 405 Howard St SF, CA 94105 415−773−5700 Email: sleong@orrick.com TERMINATED: 11/19/2019
Trish Higgins Orrick, Herrington & Sutcliffe 400 Capitol Mall, Suite 3000 Sacramento, CA 95814 916−329−7943 Email: thiggins@orrick.com TERMINATED: 11/19/2019
Yekaterina L Reyzis Orrick Herrington and Sutcliffe LLP 405 Howard Street San Francisco, CA 94105 415−773−5614 Email: yreyzis@orrick.com ATTORNEY TO BE NOTICED
represented by Robert P. Varian (See above for address) TERMINATED: 11/19/2019 LEAD ATTORNEY
Alexis Jeuk−Ling Yee−Garcia (See above for address) TERMINATED: 11/19/2019
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) TERMINATED: 11/19/2019
Charles J Ha (See above for address) TERMINATED: 11/19/2019
Christine Melissa Smith (See above for address) TERMINATED: 11/19/2019
Christine Patricia Sun (See above for address) TERMINATED: 11/19/2019

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 5 of 44

Plaintiff
Jose Elizandro Astorga−Cervantes on himself and all others similarly situated

Christopher Joseph Siebens (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
David S Keenan (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE
Derek Evan Wetmore (See above for address) ATTORNEY TO BE NOTICED
Emily K Brown (See above for address) TERMINATED: 11/19/2019
Jaya N. Kasibhatla (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE
Jingni (Jenny) Zhao (See above for address) TERMINATED: 07/30/2014
Julia Harumi Mass (See above for address) TERMINATED: 10/15/2018
Megan Elaine Sallomi (See above for address) TERMINATED: 08/30/2016
Michael Temple Risher (See above for address) TERMINATED: 11/19/2019
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Shannon Christine Leong (See above for address) TERMINATED: 11/19/2019
represented by Robert P. Varian (See above for address) TERMINATED: 11/19/2019 LEAD ATTORNEY
Alexis Jeuk−Ling Yee−Garcia (See above for address) TERMINATED: 11/19/2019
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Ariel Brianna Winawer

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 6 of 44
(See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) TERMINATED: 11/19/2019
Charles J Ha (See above for address) TERMINATED: 11/19/2019
Christine Melissa Smith (See above for address) TERMINATED: 11/19/2019
Christine Patricia Sun (See above for address) TERMINATED: 11/19/2019
Christopher Joseph Siebens (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
David S Keenan (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE
Derek Evan Wetmore (See above for address) ATTORNEY TO BE NOTICED
Emily K Brown (See above for address) TERMINATED: 11/19/2019
Eunice Hyunhye Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jaya N. Kasibhatla (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE
Jingni (Jenny) Zhao (See above for address) TERMINATED: 07/30/2014
Julia Harumi Mass (See above for address) TERMINATED: 10/15/2018
Marc Van Der Hout (See above for address) ATTORNEY TO BE NOTICED
Megan Elaine Sallomi (See above for address) TERMINATED: 08/30/2016
Michael Temple Risher

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 7 of 44

Plaintiff
Lourdes Hernandez−Trujillo on herself and all others similarly situated TERMINATED: 04/07/2015

(See above for address) TERMINATED: 11/19/2019
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Shannon Christine Leong (See above for address) TERMINATED: 11/19/2019
Trish Higgins (See above for address) TERMINATED: 11/19/2019
Yekaterina L Reyzis (See above for address) ATTORNEY TO BE NOTICED
represented by Robert P. Varian (See above for address) TERMINATED: 11/19/2019 LEAD ATTORNEY
Alexis Jeuk−Ling Yee−Garcia (See above for address) TERMINATED: 11/19/2019
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) TERMINATED: 11/19/2019
Charles J Ha (See above for address) TERMINATED: 11/19/2019
Christine Melissa Smith (See above for address) TERMINATED: 11/19/2019
Christine Patricia Sun (See above for address) TERMINATED: 11/19/2019
Christopher Joseph Siebens (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
David S Keenan (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE
Derek Evan Wetmore (See above for address) ATTORNEY TO BE NOTICED

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 8 of 44

Plaintiff Nancy Neria−Garcia

Emily K Brown (See above for address) TERMINATED: 11/19/2019
Jaya N. Kasibhatla (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE
Jingni (Jenny) Zhao (See above for address) TERMINATED: 07/30/2014
Julia Harumi Mass (See above for address) TERMINATED: 10/15/2018
Megan Elaine Sallomi (See above for address) TERMINATED: 08/30/2016
Michael Temple Risher (See above for address) TERMINATED: 11/19/2019
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Shannon Christine Leong (See above for address) TERMINATED: 11/19/2019
represented by Robert P. Varian (See above for address) TERMINATED: 11/19/2019 LEAD ATTORNEY
Alexis Jeuk−Ling Yee−Garcia (See above for address) TERMINATED: 11/19/2019
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Ariel Brianna Winawer (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 11/19/2019
David S Keenan (See above for address) TERMINATED: 11/19/2019 PRO HAC VICE
Derek Evan Wetmore (See above for address) ATTORNEY TO BE NOTICED

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 9 of 44
Emily K Brown (See above for address) TERMINATED: 11/19/2019
Eunice Hyunhye Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julia Harumi Mass (See above for address) TERMINATED: 10/15/2018
Marc Van Der Hout (See above for address) ATTORNEY TO BE NOTICED
Megan Elaine Sallomi (See above for address) TERMINATED: 08/30/2016
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Shannon Christine Leong (See above for address) TERMINATED: 11/19/2019
Trish Higgins (See above for address) TERMINATED: 11/19/2019
Yekaterina L Reyzis (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
U.S. Immigration and Customs Enforcement

represented by Jennifer A. Bowen U.S. Department of Justice − Civil Division Office of Immigration Litigation − District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−616−3558 Fax: 202−305−7000 Email: jennifer.bowen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward Department of Justice Civil Division, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20001 202−616−9121 Fax: 202−305−7000 Email: brian.c.ward@usdoj.gov ATTORNEY TO BE NOTICED

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 10 of 44
Colin A. Kisor United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514−3301 Email: colin.kisor@usdoj.gov ATTORNEY TO BE NOTICED
Dhruman Y. Sampat Department of Justice Office of Immigration Litigation − District Court Section PO Box 868 Ben Franklin Station Washington, D.C., DC 20044 202−532−4281 Email: dhruman.y.sampat@usdoj.gov ATTORNEY TO BE NOTICED
Elizabeth J. Stevens Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station 450 5th Street NW Washington, DC 20044 (202) 616−9752 Fax: (202) 305−7000 Email: Elizabeth.Stevens@usdoj.gov ATTORNEY TO BE NOTICED
Katherine J. Shinners U.S. Department of Justice, Civil Division Office of Immigration Litigation, District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−598−8259 Fax: 202−305−7000 Email: Katherine.J.Shinners@usdoj.gov ATTORNEY TO BE NOTICED
Katherine Ann Smith United States Department of Justice Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202−532−4524 Email: katherine.smith@usdoj.gov TERMINATED: 06/26/2015 ATTORNEY TO BE NOTICED
Lauren Crowell Bingham United States Department of Justice Civil Division, Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202−616−4458 Email: lauren.c.bingham@usdoj.gov ATTORNEY TO BE NOTICED

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 11 of 44

Defendant John Sandweg
Defendant U.S. Department of Homeland Security

Victor M. Mercado−Santana US DOJ Civil Division PO Box 878 Ben Franklin Station Washington, DC 20044 202−305−7001 Email: victor.m.mercado−santana@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jennifer A. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED
Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
Katherine Ann Smith (See above for address) TERMINATED: 06/26/2015 ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado−Santana (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer A. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 12 of 44

Defendant Jeh Charles Johnson

Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED
Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
Katherine Ann Smith (See above for address) TERMINATED: 06/26/2015 ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado−Santana (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer A. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED
Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
Katherine Ann Smith (See above for address) TERMINATED: 06/26/2015 ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado−Santana (See above for address) ATTORNEY TO BE NOTICED

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 13 of 44

Defendant Timothy S. Aitken
Miscellaneous Global Tel*Link Corporation

represented by Jennifer A. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED
Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
Katherine Ann Smith (See above for address) TERMINATED: 06/26/2015 ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado−Santana (See above for address) ATTORNEY TO BE NOTICED
represented by Robert James Herrington Greenberg Traurig LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 (310) 586−7700 Fax: (310) 586−7800 Email: herringtonr@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/19/2013
12/19/2013 12/19/2013

# Docket Text
1 COMPLAINT for Injunctive and Declaratory Relief against All Defendants ( Filing fee $ 400, receipt number 0971−8242737.). Filed byAudley Barrington Lyon, Jr, Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes. (Attachments: # 1 Civil Cover Sheet)(Varian, Robert) (Filed on 12/19/2013) (Entered: 12/19/2013)
2 Proposed Summons. (Varian, Robert) (Filed on 12/19/2013) (Entered: 12/19/2013)
3 Case assigned to Magistrate Judge Paul Singh Grewal.

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 14 of 44

12/19/2013
12/19/2013 12/23/2013 12/26/2013 12/30/2013 12/31/2013 01/08/2014 01/08/2014 01/09/2014 01/09/2014 01/10/2014 01/13/2014

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (ha, COURT STAFF) (Filed on 12/19/2013) (Entered: 12/19/2013)
4 Summons Issued as to Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Attorney and U.S. Attorney General, Summons Issued as to Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (cv, COURT STAFF) (Filed on 12/19/2013) (Entered: 12/19/2013)
5 Notice of Assignment of Prisoner Case to Magistrate Judge (cv, COURT STAFF) (Filed on 12/19/2013) (Entered: 12/19/2013)
6 CERTIFICATE OF SERVICE by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr re 4 Summons Issued as to USA,,, 2 Proposed Summons, 1 Complaint, Complaint for Injunctive and Declaratory Relief (Varian, Robert) (Filed on 12/23/2013) (Entered: 12/23/2013)
7 CERTIFICATE OF SERVICE by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr re 4 Summons Issued as to USA,,, 1 Complaint, 3 Case Assigned by Intake,,, (Varian, Robert) (Filed on 12/26/2013) (Entered: 12/26/2013)
8 Certificate of Interested Entities by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr re 4 Summons Issued as to USA,,, 1 Complaint, (Varian, Robert) (Filed on 12/30/2013) (Entered: 12/30/2013)
9 CERTIFICATE OF SERVICE by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr re 4 Summons Issued as to USA,,, 1 Complaint, 8 Certificate of Interested Entities (Varian, Robert) (Filed on 12/31/2013) (Entered: 12/31/2013)
10 NOTICE of Appearance by Julia Harumi Mass, Esq , Jingni (Jenny) Zhao, and Michael T. Risher (Mass, Julia) (Filed on 1/8/2014) (Entered: 01/08/2014)
11 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr.. (Varian, Robert) (Filed on 1/8/2014) (Entered: 01/08/2014)
12 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge: Clerk to reassign case. (ofr, COURT STAFF) (Filed on 1/9/2014) (Entered: 01/09/2014)
***Deadlines terminated. TERMINATING CONSENT/DECLINATION DEADLINE. (ofr, COURT STAFF) (Filed on 1/9/2014) (Entered: 01/09/2014)
13 ORDER REASSIGNING CASE. Case reassigned to Judge Edward M. Chen for all further proceedings. Magistrate Judge Paul Singh Grewal no longer assigned to the case. Signed by The Execituve Committee on 1/10/2014. (gmS, ) (Filed on 1/10/2014) (Entered: 01/10/2014)
14 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. Motion Hearing set for 2/27/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 1/27/2014. Replies due by 2/3/2014. (Attachments: # 1 Declaration Declaration of Todd Scott, # 2 Declaration Declaration of Audley Barrington Lyon, # 3 Declaration Declaration of Jose

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 15 of 44

01/14/2014
01/15/2014 01/15/2014 01/15/2014 01/23/2014 01/24/2014 01/27/2014 01/27/2014
02/21/2014
02/21/2014 02/21/2014 03/06/2014

Astorga−Cervantes, # 4 Declaration Declaration of Egdar Cornelio, # 5 Declaration Declaration of Lourdes Hernandez−Trujillo, # 6 Declaration Declaration of Christina Lee, # 7 Declaration Declaration of Julia Mass, # 8 Declaration Declaration of Marie Vincent, # 9 Certificate/Proof of Service Proof of Service)(Varian, Robert) (Filed on 1/13/2014) (Entered: 01/13/2014)
15 CERTIFICATE OF SERVICE by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr re 14 MOTION for Class Certification NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF (Varian, Robert) (Filed on 1/14/2014) (Entered: 01/14/2014)
16 NOTICE of Appearance by Jennifer A. Bowen (Bowen, Jennifer) (Filed on 1/15/2014) (Entered: 01/15/2014)
17 NOTICE of Appearance by Michael Temple Risher (Risher, Michael) (Filed on 1/15/2014) (Entered: 01/15/2014)
18 NOTICE of Appearance by Jingni Zhao (Zhao, Jingni) (Filed on 1/15/2014) (Entered: 01/15/2014)
19 NOTICE of Appearance by Carl Takei (Takei, Carl) (Filed on 1/23/2014) (Entered: 01/23/2014)
20 STIPULATION WITH PROPOSED ORDER re 14 MOTION for Class Certification re Briefing Schedule and Hearing filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Bowen, Jennifer) (Filed on 1/24/2014) (Entered: 01/24/2014)
21 CASE MANAGEMENT SCHEDULING ORDER: Case Management Statement due by 3/27/2014. Case Management Conference set for 4/3/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 1/27/14. (Attachments: # 1 Standing Order)(bpf, COURT STAFF) (Filed on 1/27/2014) (Entered: 01/27/2014)
22 STIPULATION AND ORDER re 20 STIPULATION WITH PROPOSED ORDER re 14 MOTION for Class Certification re Briefing Schedule and Hearing filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson, Set/Reset Deadlines as to 20 STIPULATION WITH PROPOSED ORDER re 14 MOTION for Class Certification re Briefing Schedule and Hearing, 14 MOTION for Class Certification. Responses due by 2/21/2014. Replies due by 3/7/2014. Motion Hearing set for 4/3/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 1/27/14. (bpf, COURT STAFF) (Filed on 1/27/2014) (Entered: 01/27/2014)
23 CLERKS NOTICE RESETTING CLASS CERTIFICATION MOTION AND CMC FROM 4/3/14 TO 4/10/14 AT 1:30 P.M., Set/Reset Deadlines as to 14 MOTION for Class Certification. Case Management Statement due by 4/3/2014. Case Management Conference set for 4/10/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco. Motion Hearing set for 4/10/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 2/21/2014) (Entered: 02/21/2014)
24 ANSWER to Complaint byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security. (Bowen, Jennifer) (Filed on 2/21/2014) (Entered: 02/21/2014)
25 RESPONSE (re 14 MOTION for Class Certification ) filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security. (Attachments: # 1 Declaration Jennifer A. Bowen, # 2 Declaration Michael Vaughn, # 3 Exhibit Order of Immigration Judge, # 4 Proposed Order)(Bowen, Jennifer) (Filed on 2/21/2014) (Entered: 02/21/2014)
26 NOTICE of Appearance by Katherine Ann Smith (Smith, Katherine) (Filed on 3/6/2014) (Entered: 03/06/2014)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 16 of 44

03/07/2014
03/10/2014
04/03/2014 04/10/2014
04/16/2014 04/16/2014 04/16/2014 04/21/2014 04/24/2014 04/28/2014 04/28/2014
04/28/2014 04/28/2014 04/30/2014 05/05/2014 05/06/2014

27 REPLY (re 14 MOTION for Class Certification ) MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Varian, Robert) (Filed on 3/7/2014) (Entered: 03/07/2014)
28 REPLY (re 14 MOTION for Class Certification ) [CORRECTED] MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Varian, Robert) (Filed on 3/10/2014) (Entered: 03/10/2014)
29 JOINT CASE MANAGEMENT STATEMENT filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Varian, Robert) (Filed on 4/3/2014) (Entered: 04/03/2014)
30 Minute Entry: Motion Hearing held on 4/10/2014 before Judge Edward M. Chen (Date Filed: 4/10/2014) re 14 MOTION for Class Certification filed by Audley Barrington Lyon, Jr., Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes. (Court Reporter Joann Bryce.) (bpfS, COURT STAFF) (Date Filed: 4/10/2014) (Entered: 04/10/2014)
31 ORDER by Judge Edward M. Chen granting 14 Plaintiffs' Motion to Certify Class (emclc1, COURT STAFF) (Filed on 4/16/2014) (Entered: 04/16/2014)
Set Deadlines/Hearings: Case Management Statement due by 5/15/2014. Case Management Conference set for 5/22/2014 09:00 AM in Courtroom 5, 17th Floor, San Francisco. (bpf, COURT STAFF) (Filed on 4/16/2014) Modified on 4/21/2014 (bpf, COURT STAFF). (Entered: 04/16/2014)
***Class Action Certified (slhS, COURT STAFF) (Filed on 4/16/2014) (Entered: 04/17/2014)
Set/Reset Deadlines: Case Management Statement due by 5/15/2014. (bpf, COURT STAFF) (Filed on 4/21/2014) (Entered: 04/21/2014)
32 Letter from ALL PARTIES (JOINT LETTER) . (Varian, Robert) (Filed on 4/24/2014) (Entered: 04/24/2014)
33 ORDER REFERRING CASE to Magistrate JudgDonna M. Ryu for Settlement. Signed by Judge Edward M. Chen on 4/28/14. (bpf, COURT STAFF) (Filed on 4/28/2014) (Entered: 04/28/2014)
34 CLERKS NOTICE resetting Further CMC from 5/22/14 to 7/10/14 at 10:30 a.m. Case Management Statement due by 7/3/2014. Further Case Management Conference set for 7/10/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE. (bpf, COURT STAFF) (Filed on 4/28/2014) (Entered: 04/28/2014)
CASE REFERRED to Magistrate Judge Donna M. Ryu for Settlement (ahm, COURT STAFF) (Filed on 4/28/2014) (Entered: 04/28/2014)
***Set/Clear Flags (ahm, COURT STAFF) (Filed on 4/28/2014) (Entered: 04/28/2014)
35 Order Setting Settlement Conference before Magistrate Judge Donna M. Ryu. Settlement Conference set for 6/20/2014 10:00 AM. in Oakland. Signed by Judge Donna M. Ryu on 4/30/2014. (ndr, COURT STAFF) (Filed on 4/30/2014) (Entered: 04/30/2014)
36 MOTION to Continue SETTLEMENT CONFERENCE DATE filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Attachments: # 1 Proposed Order)(Varian, Robert) (Filed on 5/5/2014) (Entered: 05/05/2014)
37 Order Rescheduling Settlement Conference before Magistrate Judge Donna M. Ryu. Settlement Conference set for 6/17/2014 10:00 AM. Signed by Judge Donna M. Ryu on 5/6/14. (jjoS, COURT STAFF) (Filed on 5/6/2014) (Entered: 05/06/2014)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 17 of 44

05/14/2014 05/30/2014
06/03/2014
06/03/2014 06/04/2014 06/10/2014 06/17/2014 07/02/2014 07/03/2014 07/11/2014
07/11/2014

***Motions terminated: 36 MOTION to Continue SETTLEMENT CONFERENCE DATE filed by Audley Barrington Lyon, Jr., Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes. See #37 (bpf, COURT STAFF) (Filed on 5/14/2014) (Entered: 05/14/2014)
38 STIPULATION WITH PROPOSED ORDER Governing Confidential Information Disclosed through Informal Discovery to Support Settlement Discussions & for Facilitating Class Counsel's Access to Class filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security. (Attachments: # 1 Exhibit A − Acknowledgement of Stipulated Protective Order)(Bowen, Jennifer) (Filed on 5/30/2014) (Entered: 05/30/2014)
39 STIPULATION AND ORDER re 38 Governing Confidential Information Disclosed through Informal Discovery to Support Settlement Discussions & for Facilitating Class Counsel's Access to Class filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, Jeh Charles Johnson. Signed by Judge Edward M. Chen on 6/3/14. (bpf, COURT STAFF) (Filed on 6/3/2014) (Entered: 06/03/2014)
40 STIPULATION WITH PROPOSED ORDER RE NOTICE AND ACCESS TO CLASS filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Attachments: # 1 Exhibit A)(Varian, Robert) (Filed on 6/3/2014) (Entered: 06/03/2014)
41 STIPULATION AND ORDER re 40 RE NOTICE AND ACCESS TO CLASS filed by Audley Barrington Lyon, Jr., Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes. Signed by Judge Edward M. Chen on 6/4/14. (bpfS, COURT STAFF) (Filed on 6/4/2014) (Entered: 06/04/2014)
42 First Amended ANSWER to Complaint byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Bowen, Jennifer) (Filed on 6/10/2014) (Entered: 06/10/2014)
43 Minute Entry: Settlement Conference held before Magistrate Judge Ryu (Date Filed: 6/17/2014). (Court Reporter Not Reported.) (nahS, COURT STAFF) (Date Filed: 6/17/2014) (Entered: 06/18/2014)
44 JOINT CASE MANAGEMENT STATEMENT filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Varian, Robert) (Filed on 7/2/2014) (Entered: 07/02/2014)
45 ORDER SETTING FURTHER SETTLEMENT CONFERENCE: Further Settlement Conference set for 8/15/2014 10:00 AM before Magistrate Judge Donna M. Ryu. Signed by Judge Magistrate Judge Donna M. Ryu on 7/3/14. (ig, COURT STAFF) (Filed on 7/3/2014). (Entered: 07/03/2014)
46 Minute Entry: Further Case Management Conference held on 7/10/2014 before Judge Edward M. Chen (Date Filed: 7/11/2014). Status Report due by 2/5/2015. Status Conference set for 2/12/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Recording #FTR 11:49−11:57.) 12−court day bench trial set for 11/16/15 at 8:30 a.m. (bpf, COURT STAFF) (Date Filed: 7/11/2014) (Entered: 07/11/2014)
47 CASE MANAGEMENT SCHEDULING ORDER: 12−day Bench Trial set for 11/16/2015 08:30 AM before Hon. Edward M. Chen. Discovery due by 5/14/2015. Pretrial Conference set for 10/27/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Bench Trial set for 11/17/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 11/18/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 11/20/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 11/23/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 11/24/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 11/25/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 11/30/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 12/1/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 12/2/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 12/4/2015 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 12/7/2015 08:30 AM before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 7/11/14. (bpf, COURT STAFF) (Filed on 7/11/2014) (Entered: 07/11/2014)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 18 of 44

07/29/2014
07/30/2014 07/30/2014 08/05/2014
08/12/2014 08/15/2014 08/28/2014
08/28/2014
09/03/2014 09/04/2014 09/04/2014 09/04/2014 10/02/2014

48 CLERK'S NOTICE: Notice is hereby given that Magistrate Judge Donna M. Ryu will convene a settlement conference call with defense counsel only (Jennifer Bowen and Erik Gantzel) on 8/4/2014 01:30 PM Pacific Time. Counsel shall arrange for a conference call, and shall either provide Judge Ryu with a call−in number or call her at 510−637−1006 once all other participants are on the call. (This is a text only docket entry, there is no document associated with this notice.) (ig, COURT STAFF) (Filed on 7/29/2014) (Entered: 07/29/2014)
49 NOTICE of Change In Counsel by Jingni Zhao (Zhao, Jingni) (Filed on 7/30/2014) (Entered: 07/30/2014)
*** Attorney Jingni Zhao terminated. Re 49 Notice (aaaS, COURT STAFF) (Filed on 7/30/2014) (Entered: 07/31/2014)
50 Minute Entry: Further telephonic settlement discussions (August 4−5, 2014). The August 15, 2014 settlement conference shall proceed as scheduled. The parties shall lodge and exchange brief updated settlement statements by August 12, 2014. The parties may lodge updated confidential settlement letters with Judge Ryu, but are not required to do so. (See minutes for more particulars). (FTR Recording Not Recorded.) (ig, COURT STAFF) (Date Filed: 8/5/2014) (Entered: 08/07/2014)
51 NOTICE of Appearance by Christine Melissa Louie (Varian, Robert) (Filed on 8/12/2014) (Entered: 08/12/2014)
52 Minute Entry: Further Settlement Conference HELD before Magistrate Judge Donna M. Ryu. Parties will convene for further settlement discussions on 9/3/2014 09:30 AM at West County Detention Center (Contra Costa County), and on 9/4/2014 10:00 AM (Yuba County Jail) and 02:00 PM (RCCC − Sacramento). (FTR Recording: Not Recorded) (ig, COURT STAFF) (Date Filed: 8/15/2014) (Entered: 08/15/2014)
53 STIPULATION WITH PROPOSED ORDER GOVERNING HIGHLY CONFIDENTIAL INFORMATION DISCLOSED DURING AND RELATED TO SETTLEMENT CONFERENCES TO BE HELD AT THE THREE DETENTION FACILITIES BETWEEN SEPTEMBER 3−4, 2014 filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A − ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER)(Smith, Katherine) (Filed on 8/28/2014) (Entered: 08/28/2014)
54 STIPULATION WITH PROPOSED ORDER GOVERNING CONFIDENTIAL INFORMATION DISCLOSED IN RESPONSE TO PLAINTIFFS FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND RULE 30(b)(6) NOTICE OF DEPOSITION TO DEFENDANT U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A − ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER)(Smith, Katherine) (Filed on 8/28/2014) (Entered: 08/28/2014)
55 Minute Entry: Further settlement proceedings held at West County Detention Center (Contra Costa County). (FTR Recording Not Recorded) (ig, COURT STAFF) (Date Filed: 9/3/2014) (Entered: 09/03/2014)
56 ORDER by Judge Edward M. Chen granting as modified 53 Stipulation (emclc1, COURT STAFF) (Filed on 9/4/2014) (Entered: 09/04/2014)
57 ORDER by Judge Edward M. Chen granting as modified 54 Stipulation (emclc1, COURT STAFF) (Filed on 9/4/2014) (Entered: 09/04/2014)
58 Minute Entry: Further settlement proceedings held at Yuba County Jail, Rio Cosumnes Correctional Center (Sacramento County) and ICE Regional Offices (Sacramento). See Civil Conference Minute Order for more particulars. (FTR Recording Not Recorded) (ig, COURT STAFF) (Date Filed: 9/4/2014) (Entered: 09/05/2014)
59 Minute Entry: Further telephonic settlement proceedings held September 30−October 2, 2014 before Magistrate Judge Donna M. Ryu. See minute order for all particulars. (FTR Recording: Not Recorded) (ig, COURT STAFF) (Date Filed: 10/2/2014) (Entered: 10/03/2014)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 19 of 44

11/17/2014 12/08/2014
12/16/2014
12/16/2014
12/19/2014 12/19/2014 01/13/2015
01/13/2015
02/02/2015 02/04/2015 02/04/2015 02/04/2015 02/05/2015 02/11/2015 02/11/2015

60 NOTICE of Appearance by Katherine J. Shinners (Shinners, Katherine) (Filed on 11/17/2014) (Entered: 11/17/2014)
61 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Separate telephonic settlement discussions held 12/5/14 and 12/8/14. See minute Order for all particulars. FTR Time: Not Recorded. Attachment Civil Conference Minute Order.(ig, COURT STAFF) (Date Filed: 12/8/2014) (Entered: 12/08/2014)
62 MOTION of Jaya Kasibhatla for leave to appear in Pro Hac Vice (Filing fee $ 305, receipt number 0971−9147055.) filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Attachments: # 1 Certificate of Good Standing)(Kasibhatla, Jaya) (Filed on 12/16/2014) Modified on 12/17/2014 (slhS, COURT STAFF). (Entered: 12/16/2014)
63 MOTION of David Keenan for leave to appear in Pro Hac Vice (Filing fee $ 305, receipt number 0971−9147124) filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Attachments: # 1 Certificate of Good Standing)(Keenan, David) (Filed on 12/16/2014) Modified on 12/17/2014 (slhS, COURT STAFF). (Entered: 12/16/2014)
64 ORDER by Judge Edward M. Chen granting 62 Motion for Pro Hac Vice (bpf, COURT STAFF) (Filed on 12/19/2014) (Entered: 12/19/2014)
65 ORDER by Judge Edward M. Chen granting 63 Motion for Pro Hac Vice (bpf, COURT STAFF) (Filed on 12/19/2014) (Entered: 12/19/2014)
66 STIPULATION WITH PROPOSED ORDER Governing Confidential & Highly Confidential Information filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A − Acknowledgment of Stipulated Protective Order)(Bowen, Jennifer) (Filed on 1/13/2015) (Entered: 01/13/2015)
67 STIPULATION AND ORDER re 66 STIPULATION WITH PROPOSED ORDER Governing Confidential & Highly Confidential Information filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson. Signed by Judge Edward M. Chen on 1/13/15. (bpf, COURT STAFF) (Filed on 1/13/2015) (Entered: 01/13/2015)
68 MOTION for leave to appear in Pro Hac Vice Charles J. Ha ( Filing fee $ 305, receipt number 0971−9254591.) filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Attachments: # 1 Certificate of Good Standing)(Ha, Charles) (Filed on 2/2/2015) (Entered: 02/02/2015)
69 ORDER by Judge Edward M. Chen granting 68 Motion for Pro Hac Vice (Ha) (bpf, COURT STAFF) (Filed on 2/4/2015) (Entered: 02/04/2015)
70 Notice and MOTION for Permission to Withdraw as Counsel for Edgar Cornelio by Julia Harumi Mass, Esq (Attachments: # 1 Declaration of Julia Harumi Mass, # 2 Proposed Order)(Mass, Julia) (Filed on 2/4/2015) Modified on 2/5/2015 (slhS, COURT STAFF). (Entered: 02/04/2015)
71 STIPULATION WITH PROPOSED ORDER of Voluntary Dismissal of Edgar Cornelio filed by Edgar Cornelio. (Mass, Julia) (Filed on 2/4/2015) (Entered: 02/04/2015)
72 CASE MANAGEMENT STATEMENT JOINT filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Varian, Robert) (Filed on 2/5/2015) (Entered: 02/05/2015)
73 ORDER by Judge Edward M. Chen granting 70 Motion to Withdraw as Attorney for Edgar Cornelio. (bpf, COURT STAFF) (Filed on 2/11/2015) Modified on 2/11/2015 (bpf, COURT STAFF). (Entered: 02/11/2015)
74 STIPULATION AND ORDER re 71 STIPULATION WITH PROPOSED ORDER of Voluntary Dismissal of Edgar Cornelio filed by Edgar Cornelio. Signed by Judge Edward M. Chen on 2/11/15. (bpf, COURT STAFF) (Filed on 2/11/2015) (Entered: 02/11/2015)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 20 of 44

02/13/2015 02/13/2015
02/19/2015 02/19/2015 03/04/2015 03/04/2015 03/06/2015 03/13/2015 04/06/2015 04/07/2015

75 Minute Entry for proceedings held before Hon. Edward M. Chen: Status Conference held on 2/12/2015.12 court day bench trial reset from 11/16/15 to 2/1/16 at 8:30 a.m.Court Reporter Name or FTR Time 11:19−11:30. (bpf, COURT STAFF) (Date Filed: 2/13/2015) (Entered: 02/13/2015)
76 CASE MANAGEMENT SCHEDULING ORDER: 12−court day Bench Trial reset from 11/16/15 to for 2/1/2016 08:30 AM before Hon. Edward M. Chen. Discovery due by 7/14/2015. Motion Hearing set for 10/22/2015 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Pretrial Conference set for 1/5/2016 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Bench Trial set for 2/2/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/3/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/5/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/8/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/9/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/10/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/12/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/16/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/17/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/19/2016 08:30 AM before Hon. Edward M. Chen. Bench Trial set for 2/22/2016 08:30 AM before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 2/13/15. (bpf, COURT STAFF) (Filed on 2/13/2015) (Entered: 02/13/2015)
77 NOTICE of Appearance by Megan Elaine Sallomi (Sallomi, Megan) (Filed on 2/19/2015) (Entered: 02/19/2015)
78 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: On 3/11/2015 10:00 AM, Plaintiffs' counsel shall contact Judge Ryu to discuss their reaction to Defendants' 2/9/2015 settlement proposal. Judge Ryu will then contact all counsel with a proposed process and schedule for further settlement discussions. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 2/19/2015) (Entered: 02/20/2015)
79 NOTICE AND MOTION FOR PERMISSION TO WITHDRAW THE ACLU−NORTHERN CALIFORNIA, THE ACLU−NATIONAL PRISON PROJECT, AND ORRICK, HERRINGTON & SUTCLIFFE LLP AS COUNSEL FOR LOURDES HERNANDEZ−TRUJILLO by Lourdes Hernandez−Trujillo (Attachments: # 1 Declaration Julia Harumi Mass)(Varian, Robert) (Filed on 3/4/2015) Modified on 3/5/2015 (slhS, COURT STAFF). (Entered: 03/04/2015)
80 STIPULATION WITH PROPOSED ORDER OF VOLUNTARY DISMISSAL OF LOURDES HERNANDEZ−TRUJILLO PURSUANT TO F.R.C.P. 41(a)(1)(A)(ii) filed by Lourdes Hernandez−Trujillo. (Varian, Robert) (Filed on 3/4/2015) (Entered: 03/04/2015)
81 ORDER Re 79 80 Motion to Voluntary Dismiss Lourdes Hernandez−Trujillo's Claims and to Withdraw as Counsel. Signed by Judge Edward M. Chen on 3/6/2015. (emcsec, COURT STAFF) (Filed on 3/6/2015) (Entered: 03/06/2015)
82 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held March 12 and 13, 2015. Matter did not settle. No further discussions anticipated at this time. Parties are invited to contact Judge Ryu for further assistance at any time. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 3/13/2015) (Entered: 03/16/2015)
83 STIPULATION WITH PROPOSED ORDER for Voluntary Dismissal of Lourdes Hernandez−Trujillo filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Attachments: # 1 Declaration Julia Harumi Mass Declaration)(Mass, Julia) (Filed on 4/6/2015) (Entered: 04/06/2015)
84 STIPULATION AND ORDER re 83 STIPULATION WITH PROPOSED ORDER for Voluntary Dismissal of Lourdes Hernandez−Trujillo filed by Audley Barrington Lyon, Jr. et al. Signed by Judge Edward M. Chen on 4/7/15. (bpf, COURT STAFF) (Filed on 4/7/2015) (Entered: 04/07/2015)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 21 of 44

05/08/2015 06/11/2015
06/18/2015 06/22/2015 06/22/2015 06/25/2015 06/26/2015 06/30/2015 07/02/2015 07/09/2015 07/17/2015
07/17/2015

85 NOTICE of Appearance by Brian Christopher Ward (Ward, Brian) (Filed on 5/8/2015) (Entered: 05/08/2015)
86 MOTION for Leave to file a Supplemental Complaint filed by Audley Barrington Lyon, Jr. Motion Hearing set for 7/16/2015 01:30 PM before Edward M. Chen. Responses due by 6/25/2015. Replies due by 7/2/2015. (Attachments: # 1 Declaration Neria−Garcia, # 2 Declaration Julia Mass, # 3 Exhibit Ehx. A First Supplement, # 4 Exhibit Exh. 1 Detainee, # 5 Proposed Order Granting Plaintiff's Motion)(Sallomi, Megan) (Filed on 6/11/2015) Modified on 6/12/2015 (slhS, COURT STAFF). (Entered: 06/11/2015)
87 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 6/12/2015 and 6/18/2015. FTR Time Not recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 6/18/2015) (Entered: 06/19/2015)
88 STIPULATION WITH PROPOSED ORDER Requesting Modification of Discovery and Dispositive Motion Deadlines in First Amended Case Management Order filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Shinners, Katherine) (Filed on 6/22/2015) (Entered: 06/22/2015)
89 ORDER by Judge Edward M. Chen granting as modified 88 Stipulation (emclc1, COURT STAFF) (Filed on 6/22/2015) (Entered: 06/22/2015)
90 RESPONSE (re 86 MOTION for Leave to file a Supplemental Complaint ) filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Brian C. Ward and Exhibits, # 2 Proposed Order)(Ward, Brian) (Filed on 6/25/2015) (Entered: 06/25/2015)
91 NOTICE of Change In Counsel by Katherine Ann Smith (Smith, Katherine) (Filed on 6/26/2015) (Entered: 06/26/2015)
92 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held 6/30/2015. Defendants anticipate providing further information to Judge Ryu by late July. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 6/30/2015) (Entered: 06/30/2015)
93 REPLY (re 86 MOTION for Leave to file a Supplemental Complaint ) and Modify Class Certification Order filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr. (Attachments: # 1 Affidavit)(Mass, Julia) (Filed on 7/2/2015) (Entered: 07/02/2015)
94 CLERK'S NOTICE. Last day to hear dispositive motion is reset from 10/22/2015 to 10/15/2015 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpf, COURT STAFF) (Filed on 7/9/2015) (Entered: 07/09/2015)
95 Minute Entry for proceedings held before Edward M. Chen: Motion Hearing held on 7/16/2015 re 86 MOTION for Leave to file a Supplemental Complaint filed by Audley Barrington Lyon, Jr. ; granting 86 Motion to Amend/Correct. Granted. Status Report due by 11/12/2015. Status Conference set for 11/19/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen.Court Reporter Name Lydia Zinn. (bpf, COURT STAFF) (Date Filed: 7/17/2015) (Entered: 07/17/2015)
96 CASE MANAGEMENT SCHEDULING ORDER: Bench Trial reset for 5/23/2016 08:30 AM before Edward M. Chen. Discovery due by 11/19/2015. Motion Hearing set for 2/11/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Status Conference set for 11/19/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Bench Trial set for 5/24/2016 08:30 AM before Edward M. Chen. Bench Trial set for 5/25/2016 08:30 AM before Edward M. Chen. Bench Trial set for 5/27/2016 08:30 AM before Edward M. Chen. Bench Trial set for 5/31/2016 08:30 AM before Edward M. Chen. Bench Trial set for 6/1/2016 08:30 AM before Edward M.

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 22 of 44

07/23/2015
07/27/2015 08/27/2015 08/28/2015 09/02/2015 09/08/2015 10/21/2015 10/26/2015 11/03/2015 11/10/2015 11/17/2015 11/17/2015

Chen. Bench Trial set for 6/3/2016 08:30 AM before Edward M. Chen. Bench Trial set for 6/6/2016 08:30 AM before Edward M. Chen. Bench Trial set for 6/7/2016 08:30 AM before Edward M. Chen. Bench Trial set for 6/8/2016 08:30 AM before Edward M. Chen. Bench Trial set for 6/10/2016 08:30 AM before Edward M. Chen. Bench Trial set for 6/13/2016 08:30 AM before Edward M. Chen.. Signed by Judge Edward M. Chen on 7/17/15. (bpf, COURT STAFF) (Filed on 7/17/2015) (Entered: 07/17/2015)
97 Transcript of Proceedings held on 7/16/2015, before Judge Edward M. Chen. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redacted Transcript Deadline set for 8/24/2015. Release of Transcript Restriction set for 10/21/2015. (Zinn, Lydia) (Filed on 7/23/2015) (Entered: 07/23/2015)
98 ORDER Granting 86 Plaintiffs' Motion to Modify Class Certification, Supplement Complaint, and Modify the Case Management Scheduling Order. Signed by Judge Edward M. Chen on 7/27/2015. (emcsec, COURT STAFF) (Filed on 7/27/2015) (Entered: 07/27/2015)
99 AMENDED COMPLAINT − (Class Action) First Supplemental Complaint for Injunctive and Declaratory Relief against All Defendants. Filed by Audley Barrington Lyon, Jr, Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes. (Sallomi, Megan) (Filed on 8/27/2015) (Entered: 08/27/2015)
100 ANSWER to Amended Complaint byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Shinners, Katherine) (Filed on 8/28/2015) (Entered: 08/28/2015)
101 MOTION for leave to appear in Pro Hac Vice of Christopher J. Siebens ( Filing fee $ 305, receipt number 0971−9805822.) filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Attachments: # 1 Certificate of Good Standing)(Siebens, Christopher) (Filed on 9/2/2015) (Entered: 09/02/2015)
102 ORDER by Judge Edward M. Chen granting 101 Motion for Pro Hac Vice (bpf, COURT STAFF) (Filed on 9/8/2015) (Entered: 09/08/2015)
103 CLERK'S NOTICE. Status Conference reset from 11/19/2015 to 12/1/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Status Report due by 11/25/2015. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpf, COURT STAFF) (Filed on 10/21/2015) (Entered: 10/21/2015)
104 CLERK'S NOTICE. Status Conference reset from 12/1/2015 to 12/15/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Case Management Statement due by 12/8/2015. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpf, COURT STAFF) (Filed on 10/26/2015) (Entered: 10/26/2015)
105 NOTICE of Appearance by Angelica H Salceda (Salceda, Angelica) (Filed on 11/3/2015) (Entered: 11/03/2015)
106 NOTICE of Change In Counsel by Megan Elaine Sallomi (Sallomi, Megan) (Filed on 11/10/2015) (Entered: 11/10/2015)
107 CLERK'S NOTICE. Pretrial Conference reset from 4/26/2016 to 4/19/2016 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Pretrial filings due 21 days before pretrial conference. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpf, COURT STAFF) (Filed on 11/17/2015) (Entered: 11/17/2015)
108 NOTICE of Appearance by Alexis Jeuk−Ling Yee−Garcia (Yee−Garcia, Alexis) (Filed on 11/17/2015) (Entered: 11/17/2015)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 23 of 44

11/25/2015 11/25/2015
12/07/2015 12/08/2015 12/11/2015
12/11/2015 12/14/2015 12/15/2015 12/15/2015
12/16/2015 12/18/2015

109 STIPULATION WITH PROPOSED ORDER REGARDING SCHEDULE AND PAGE LIMITS FOR BRIEFING ON CROSS MOTIONS FOR SUMMARY JUDGMENT filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr. (Varian, Robert) (Filed on 11/25/2015) (Entered: 11/25/2015)
110 STIPULATION AND ORDER re 109 STIPULATION WITH PROPOSED ORDER REGARDING SCHEDULE AND PAGE LIMITS FOR BRIEFING ON CROSS MOTIONS FOR SUMMARY JUDGMENT filed by Audley Barrington Lyon, Jr., Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes.Signed by Judge Edward M. Chen on 11/25/15. (bpf, COURT STAFF) (Filed on 11/25/2015) (Entered: 11/25/2015)
111 STIPULATION WITH PROPOSED ORDER Regarding Modification to Schedule for Expert Disclosures and Briefing on Cross Motions for Summary Judgment filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Shinners, Katherine) (Filed on 12/7/2015) (Entered: 12/07/2015)
112 JOINT CASE MANAGEMENT STATEMENT filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Mass, Julia) (Filed on 12/8/2015) (Entered: 12/08/2015)
113 STIPULATION AND ORDER re 111 STIPULATION WITH PROPOSED ORDER Regarding Modification to Schedule for Expert Disclosures and Briefing on Cross Motions for Summary Judgment filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson. Signed by Judge Edward M. Chen on 12/11/15. (bpf, COURT STAFF) (Filed on 12/11/2015) (Entered: 12/11/2015)
114 NOTICE of Appearance by Marc VanDerHout (VanDerHout, Marc) (Filed on 12/11/2015) (Entered: 12/11/2015)
115 STIPULATION WITH PROPOSED ORDER REGARDING PAGE LIMITS FOR BRIEFING ON CROSS MOTIONS FOR SUMMARY JUDGMENT, EXPERT DISCOVERY CUT−OFF filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Varian, Robert) (Filed on 12/14/2015) (Entered: 12/14/2015)
116 STIPULATION WITH PROPOSED ORDER re Redaction of Names filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Mass, Julia) (Filed on 12/15/2015) (Entered: 12/15/2015)
117 STIPULATION AND ORDER re 115 STIPULATION WITH PROPOSED ORDER REGARDING PAGE LIMITS FOR BRIEFING ON CROSS MOTIONS FOR SUMMARY JUDGMENT, EXPERT DISCOVERY CUT−OFF filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Jose Elizandro Astorga−Cervantes. Signed by Judge Edward M. Chen on 12/15/15. (bpf, COURT STAFF) (Filed on 12/15/2015) (Entered: 12/15/2015)
118 STIPULATION AND ORDER re 116 STIPULATION WITH PROPOSED ORDER re Redaction of Names filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Jose Elizandro Astorga−Cervantes. Signed by Judge Edward M. Chen on 12/16/15. (bpf, COURT STAFF) (Filed on 12/16/2015) (Entered: 12/16/2015)
119 Administrative Motion to File Under Seal filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Declaration of David S. Keenan, # 2 Proposed Order, # 3 MSJ (UNDERSEAL), # 4 MSJ (REDACTED), # 5 Declaration of Michael Berg (UNDERSEAL), # 6 Declaration of Armando Levy (UNDERSEAL), # 7 Declaration of Michael Berg (PUBLIC), # 8 Declaration of Armando Levy (PUBLIC), # 9 Declaration of Don Wood (PUBLIC), # 10 Declaration of Melanie D. Phillips with Exs A−B (UNDERSEAL), # 11 Exhibit C Part 1 (UNDERSEAL), # 12 Exhibit C Part 2 (UNDERSEAL), # 13 Exhibit D−G (UNDERSEAL), # 14 Exhibit H−L (UNDERSEAL), # 15 Exhibit M Part 1 (UNDERSEAL), # 16 Exhibit M Part 2 (UNDERSEAL), # 17 Exhibit N−R (UNDERSEAL), # 18 Exhibit S−V (UNDERSEAL), # 19 Declaration of Melanie D. Phillips (PUBLIC), # 20 Declaration of Carl Takei (PUBLIC), # 21 Declaration of Carl Takei (UNDERSEAL))(Varian,

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 24 of 44

12/18/2015
12/18/2015 12/18/2015 12/18/2015 12/18/2015
12/18/2015

Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
120 MOTION for Summary Judgment filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Motion Hearing set for 2/11/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 1/4/2016. Replies due by 1/11/2016. (Attachments: # 1 Proposed Order, # 2 Declaration of YA, # 3 Declaration of VV, # 4 Declaration of SA, # 5 Declaration of RK, # 6 Declaration of OA, # 7 Declaration of Nancy Neria−Garcia, # 8 Declaration of MG, # 9 Declaration of Audley Lyon, # 10 Declaration of KM, # 11 Declaration of JH, # 12 Declaration of IP, # 13 Declaration of HS, # 14 Declaration of FL, # 15 Declaration of EL, # 16 Declaration of BM, # 17 Declaration Supplemental − Marie Vincent, # 18 Declaration Supplemental − Christina H. Lee, # 19 Declaration of Trinal Realmuto, # 20 Declaration of Marie Vincent, # 21 Declaration Christina H. Lee, # 22 Declaration of Anoop Prasad, # 23 Declaration of Michael Berg, # 24 Declaration of Don Wood, # 25 Declaration of Armando Levy, # 26 Declaration of Melanie Phillips with Exs A−V, # 27 Declaration of Charles Ha, # 28 Declaration of Carl Takei)(Varian, Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
121 EXHIBITS re 120 MOTION for Summary Judgment to Declaration of Charles Ha filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Exhibit Exhibits 15 − 32 to Charles Ha Declaration, # 2 Exhibit Exhibits 33 − 44 to Charles Ha Declaration)(Related document(s) 120 ) (Varian, Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
122 Declaration of David S. Keenan in Support of 119 Administrative Motion to File Under Seal filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 119 ) (Varian, Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
123 Supplemental Administrative Motion to File Under Seal filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Proposed Order Granting Plaintiffs' Supplemental Administrative Motion To File Under Seal)(Varian, Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
124 Supplemental Administrative Motion to File Under Seal filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Declaration Declaration of David S. Keenan In Support of Supplemental Motion to Seal, # 2 Proposed Order Proposed Order Granting Supplemental Motion to Seal, # 3 Appendix List of Class Member Names, # 4 Declaration [Public] Declaration of Carl Takei In Support of Motion for Summary Judgment, # 5 Declaration Sealed Declaration of Carl Takei ISO Motion for Summary Judgment, # 6 Exhibit Sealed Exhibits to Takei Declaration, # 7 Exhibit Sealed Exhibits to Takei Declaration, # 8 Exhibit Sealed Exhibits to Takei Declaration, # 9 Exhibit Sealed Exhibits to Takei Declaration, # 10 Exhibit Sealed Exhibits to Takei Declaration, # 11 Exhibit Sealed Exhibits to Takei Declaration, # 12 Exhibit Sealed Exhibits to Takei Declaration, # 13 Exhibit Sealed Exhibits to Takei Declaration, # 14 Exhibit Sealed Exhibits to Takei Declaration, # 15 Exhibit Sealed Exhibits to Takei Declaration, # 16 Exhibit Sealed Exhibits to Takei Declaration, # 17 Exhibit Sealed Exhibits to Takei Declaration, # 18 Exhibit Sealed Exhibits to Takei Declaration, # 19 Exhibit Sealed Exhibits to Takei Declaration, # 20 Exhibit Sealed Exhibits to Takei Declaration, # 21 Exhibit Sealed Exhibits to Takei Declaration, # 22 Exhibit Sealed Exhibits to Takei Declaration, # 23 Exhibit Sealed Exhibits to Takei Declaration, # 24 Exhibit Sealed Exhibits to Takei Declaration, # 25 Exhibit Sealed Exhibits to Takei Declaration, # 26 Exhibit Sealed Exhibits to Takei Declaration, # 27 Exhibit Sealed Exhibits to Takei Declaration, # 28 Exhibit Sealed Exhibits to Takei Declaration, # 29 Exhibit Sealed Exhibits to Takei Declaration, # 30 Exhibit Sealed Exhibits to Takei Declaration, # 31 Exhibit Sealed Exhibits to Takei Declaratioin, # 32 Exhibit Sealed Exhibits to Takei Declaration, # 33 Exhibit Sealed Exhibits to Takei Declaration, # 34 Exhibit Sealed Exhibits to Takei Declaration, # 35 Exhibit Sealed Exhibits to Takei Declaration)(Varian, Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
125 AFFIDAVIT re 119 Administrative Motion to File Under Seal re Service of Un−Redacted Documents Re Administrative Motion to Seal by Jose Elizandro

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 25 of 44

12/18/2015 12/21/2015 12/22/2015 12/22/2015 12/22/2015
12/22/2015 12/23/2015 12/23/2015 12/28/2015 12/28/2015
12/28/2015

Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Varian, Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
126 CERTIFICATE OF SERVICE by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia re 119 Administrative Motion to File Under Seal , 120 MOTION for Summary Judgment (Varian, Robert) (Filed on 12/18/2015) (Entered: 12/18/2015)
127 Minute Entry for proceedings held before Edward M. Chen: Status Conference held on 12/15/2015. MSJ set for 2/11/16. FTR Time 10:44−10:54. (bpf, COURT STAFF) (Date Filed: 12/21/2015) (Entered: 12/21/2015)
128 MOTION Remove Incorrectly Filed Document re 119 Administrative Motion to File Under Seal , 122 Declaration in Support, 121 Exhibits, filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Responses due by 12/28/2015. (Attachments: # 1 Proposed Order Granting Plaintiffs' Administrative Motion to Remove Incorrectly Filed Documents)(Varian, Robert) (Filed on 12/22/2015) (Entered: 12/22/2015)
129 Declaration of David S. Keenan in Support of 119 Administrative Motion to File Under Seal CORRECTION OF DOCKET # [119−1], 122 filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 119 ) (Varian, Robert) (Filed on 12/22/2015) (Entered: 12/22/2015)
130 Second Administrative Motion to File Under Seal filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Declaration of David S. Keenan In Support of Second Supplemental Motion to Seal, # 2 Proposed Order Granting Second Supplemental Motion to Seal, # 3 Exhibit Corrected [SEALED] Exhibits 15−32 to Charles Ha Declaration, # 4 Exhibit Corrected [PUBLIC] Exhibits 15−32 to Charles Ha Declaration)(Varian, Robert) (Filed on 12/22/2015) (Entered: 12/22/2015)
131 EXHIBITS re 120 MOTION for Summary Judgment [PUBLIC] Corrected Exhibits 15−32 to Charles Ha Declaration − CORRECTION OF DOCKET # [121−1] filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 120 ) (Varian, Robert) (Filed on 12/22/2015) (Entered: 12/22/2015)
132 AFFIDAVIT of David S. Keenan re Certificate of Service re Un−Redacted Documents re Second Supplemental Administrative Motion to Seal re Motion for Summary Adjudication by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Varian, Robert) (Filed on 12/23/2015) (Entered: 12/23/2015)
133 ORDER by Judge Edward M. Chen granting 128 Motion to remove incorrect filing (bpf, COURT STAFF) (Filed on 12/23/2015) (Entered: 12/23/2015)
134 Declaration of MICHAEL W. BROWNING in Support of 119 Administrative Motion to File Under Seal PRODUCED BY THIRD PARTY GLOBAL TEL*LINK CORPORATION filed byGlobal Tel*Link Corporation. (Related document(s) 119 ) (Herrington, Robert) (Filed on 12/28/2015) (Entered: 12/28/2015)
135 Declaration of Deborah Goodwin in Support of 119 Administrative Motion to File Under Seal , 130 Second Administrative Motion to File Under Seal , 129 Declaration in Support, 123 Supplemental Administrative Motion to File Under Seal filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Redacted Ex. H, # 2 Exhibit Redacted Ex. L, # 3 Exhibit Redacted Ex. M Part 1, # 4 Exhibit Redacted Ex. M Part 2, # 5 Exhibit Redacted Ex. O, # 6 Exhibit Redacted Ex. 29)(Related document(s) 119 , 130 , 129 , 123 ) (Bowen, Jennifer) (Filed on 12/28/2015) (Entered: 12/28/2015)
136 ERRATA re 120 MOTION for Summary Judgment by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Mass, Julia) (Filed on 12/28/2015) (Entered: 12/28/2015)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 26 of 44

01/04/2016 01/05/2016
01/05/2016
01/06/2016 01/21/2016 01/22/2016

137 STIPULATION WITH PROPOSED ORDER Extending Expert Discovery Cut−Off filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Ward, Brian) (Filed on 1/4/2016) (Entered: 01/04/2016)
138 Administrative Motion to File Under Seal Documents Submitted with Defendants' Cross−Motion for Summary Judgment filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Redacted Version of MSJ, # 4 Unredacted Version of MSJ, # 5 Redacted Version of Exhibit 2, # 6 Unredacted Version of Exhibit 2, # 7 Redacted Version of Exhibit 13, # 8 Unredacted Version of Exhibit 13, # 9 Redacted Version of Exhibit 14, # 10 Unredacted Version of Exhibit 14, # 11 Redacted Version of Exhibit 15, # 12 Unredacted Version of Exhibit 15, # 13 Redacted Version of Exhibit 16, # 14 Unredacted Version of Exhibit 16, # 15 Redacted Version of Exhibit 24, # 16 Unredacted Version of Exhibit 24, # 17 Redacted Version of Exhibit 25, # 18 Unredacted Version of Exhibit 25, # 19 Redacted Version of Exhibit 36, # 20 Unredacted Version of Exhibit 36, # 21 Redacted Version of Exhibit 37, # 22 Unredacted Version Exhibit 37)(Shinners, Katherine) (Filed on 1/5/2016) (Entered: 01/05/2016)
139 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Adjudication filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Motion Hearing set for 2/11/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 1/21/2016. Replies due by 1/28/2016. (Attachments: # 1 Exhibit A, # 2 Declaration, # 3 Exhibit 1 to Shinners Declaration, # 4 Redacted Exhibit 2 to Shinners Declaration, # 5 Exhibit 3 to Shinners Declaration, # 6 Exhibit 4 to Shinners Declaration, # 7 Exhibit 5 to Shinners Declaration, # 8 Exhibit 6 to Shinners Declaration, # 9 Exhibit 7 to Shinners Declaration, # 10 Exhibit 8 to Shinners Declaration, # 11 Exhibit 9 to Shinners Declaration, # 12 Exhibit 10 to Shinners Declaration, # 13 Exhibit 11 to Shinners Declaration, # 14 Exhibit 12 to Shinners Declaration, # 15 Redacted Exhibit 13 to Shinners Declaration, # 16 Redacted Exhibit 14 to Shinners Declaration, # 17 Redacted Exhibit 15 to Shinners Declaration, # 18 Redacted Exhibit 16 to Shinners Declaration, # 19 Exhibit 17 to Shinners Declaration, # 20 Exhibit 18 to Shinners Declaration, # 21 Exhibit 19 to Shinners Declaration, # 22 Exhibit 20 to Shinners Declaration, # 23 Exhibit 21 to Shinners Declaration, # 24 Exhibit 22 (Part I of II) to Shinners Declaration, # 25 Exhibit 22 (Part II of II) to Shinners Declaration, # 26 Exhibit 23 to Shinners Declaration, # 27 Redacted Exhibit 24 to Shinners Declaration, # 28 Redacted Exhibit 25 to Shinners Declaration, # 29 Exhibit 26 to Shinners Declaration, # 30 Exhibit 27 to Shinners Declaration, # 31 Exhibit 28 to Shinners Declaration, # 32 Exhibit 29 to Shinners Declaration, # 33 Exhibit 30 to Shinners Declaration, # 34 Exhibit 31 to Shinners Declaration, # 35 Exhibit 32 to Shinners Declaration, # 36 Exhibit 33 to Shinners Declaration, # 37 Exhibit 34 to Shinners Declaration, # 38 Exhibit 35 to Shinners Declaration, # 39 Redacted Exhibit 36 to Shinners Declaration, # 40 Redacted Exhibit 37 to Shinners Declaration, # 41 Proposed Order)(Shinners, Katherine) (Filed on 1/5/2016) (Entered: 01/05/2016)
140 STIPULATION AND ORDER re 137 STIPULATION WITH PROPOSED ORDER Extending Expert Discovery Cut−Off filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson. Signed by Judge Edward M. Chen on 1/6/16. (bpf, COURT STAFF) (Filed on 1/6/2016) (Entered: 01/06/2016)
141 RESPONSE (re 120 MOTION for Summary Judgment , 139 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Adjudication ) Plaintiffs' Opposition to Defendants' Cross Motion for Summary Judgment and Reply in Support of Plaintiffs' Motion for Summary Adjudication filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Declaration Declaration of Alexis Yee−Garcia ISO Plt. Opp. and Reply, # 2 Exhibit Ex. 45 − 63 to Yee−Garcia Decl.)(Varian, Robert) (Filed on 1/21/2016) (Entered: 01/21/2016)
142 Declaration of Ilyce Shugall in Support of 141 Opposition/Response to Motion,, Declaration of Ilyce Shugall In Support of Plaintiffs' Opposition to Defendants' Cross

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Motion and Reply in Support of Plaintiffs' Motion for Summary Adjudication filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 141 ) (Varian, Robert) (Filed on 1/22/2016) (Entered: 01/22/2016)
143 MOTION to Remove Incorrectly Filed Document re: Declaration and Exhibits in Support of Opposition to Defendants' Cross Motion for Summary Judgment and Reply in Support of Plaintiffs' Motion for Summary Adjudication filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Varian, Robert) (Filed on 1/25/2016) (Entered: 01/25/2016)
144 Declaration of Alexis Yee−Garcia in Support of 141 Opposition/Response to Motion,, filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Exhibit)(Related document(s) 141 ) (Varian, Robert) (Filed on 1/25/2016) (Entered: 01/25/2016)
145 ERRATA re 141 Opposition/Response to Motion,, by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Exhibit)(Varian, Robert) (Filed on 1/25/2016) (Entered: 01/25/2016)
146 Second Administrative Motion to File Under Seal re: Defendants' Reply In Support of Cross−Motion for Summary Judgment filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Redacted Version of Exhibit A to Trinidad Declaration, # 4 Unredacted Exhibit A to Trinidad Declaration, # 5 Redacted Version of Exhibit 3 to Ward Declaration, # 6 Unredacted Version of Exhibit 3 to Ward Declaration)(Shinners, Katherine) (Filed on 1/28/2016) (Entered: 01/28/2016)
147 REPLY (re 139 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Adjudication ) filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration Decl. of Brian Ward, # 2 Exhibit Ex. 1 to Ward Decl., # 3 Exhibit Ex. 2 to Ward Decl., # 4 Exhibit Ex. 3 to Ward Decl. (Redacted), # 5 Exhibit Ex. 4 to Ward Decl., # 6 Exhibit Ex. 5 to Ward Decl., # 7 Exhibit Ex. 6 to Ward Decl., # 8 Exhibit Ex. 7 to Ward Decl., # 9 Exhibit Ex. 8 to Ward Decl., # 10 Exhibit Ex. 9 to Ward Decl., # 11 Declaration Decl. of John Trinidad, # 12 Exhibit Ex. A to Trinidad Decl.)(Shinners, Katherine) (Filed on 1/28/2016) (Entered: 01/28/2016)
148 Declaration of David S. Keenan in Support of 146 Second Administrative Motion to File Under Seal re: Defendants' Reply In Support of Cross−Motion for Summary Judgment filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 146 ) (Keenan, David) (Filed on 1/29/2016) (Entered: 01/29/2016)
149 NOTICE of Filing Error and Substitution by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 147 Reply to Opposition/Response (Attachments: # 1 Declaration of John M. Trinidad in Support of Defendants' Reply in Support of Cross−Motion for Summary Judgment (Substituted))(Shinners, Katherine) (Filed on 1/29/2016) Modified on 2/1/2016 (slhS, COURT STAFF). (Entered: 01/29/2016)
150 NOTICE of Appearance by Lauren Crowell Bingham (Bingham, Lauren) (Filed on 1/29/2016) (Entered: 01/29/2016)
151 NOTICE by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia Plaintiffs' Notice of Pending Challenge to Confidentiality Designations (Attachments: # 1 Declaration of Julia Harumi Mass ISO Plaintiffs' Notice of Pending Challenge to Confidentiality Designations)(Mass, Julia) (Filed on 2/2/2016) (Entered: 02/02/2016)
152 ORDER by Judge Edward M. Chen granting 143 Motion to Remove Incorrectly Filed Document (bpf, COURT STAFF) (Filed on 2/3/2016) (Entered: 02/03/2016)
153 Declaration of David S. Keenan (Second Amended) in Support of 119 Administrative Motion to File Under Seal CORRECTION OF DOCKET # 129 filed byJose Elizandro

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Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 119 ) (Keenan, David) (Filed on 2/3/2016) (Entered: 02/03/2016)
154 NOTICE by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 139 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Adjudication of Error and Substitution (Attachments: # 1 Exhibit 36 to Shinners Declaration in Support of Defendants' Cross−Motion for Summary Judgment (substituted))(Shinners, Katherine) (Filed on 2/5/2016) (Entered: 02/05/2016)
155 Minute Entry for proceedings held before Edward M. Chen: Motion Hearing held on 2/11/2016 re 120 MOTION for Summary Judgment filed by Nancy Neria−Garcia, etc. and 139 Cross MOTION for Summary Judgment filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson. Briefing due 2/18/2016. Court to issue order. Pretrial conference already set for 4/19/16 at 2:30 p.m. Bench trial set for 5/23/16 at 8:30 a.m. Total Time in Court 1 hour 18 minutes. Court Reporter Name JoAnn Bryce. Plaintiff Attorney Julia Mass, Judy Kwan, Angelica Sakada, Alexis Garcia, Megan Sallomi. Defendant Attorney Katherine Shinner and Brian Ward. This is a text only Minute Entry (bpf, COURT STAFF) (Date Filed: 2/11/2016) (Entered: 02/11/2016)
156 TRANSCRIPT ORDER by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia for Court Reporter Jo Ann Bryce. (Yee−Garcia, Alexis) (Filed on 2/12/2016) (Entered: 02/12/2016)
157 Transcript of Proceedings held on 2/11/16, before Judge Edward M. Chen. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 156 Transcript Order ) Release of Transcript Restriction set for 5/17/2016. (Related documents(s) 156 ) (Bryce, Joann) (Filed on 2/17/2016) (Entered: 02/17/2016)
158 TRANSCRIPT ORDER − CJA for Court Reporter Jo Ann Bryce. (Shinners, Katherine) (Filed on 2/17/2016) (Entered: 02/17/2016)
159 Supplemental Brief re 139 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Adjudication filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Related document(s) 139 ) (Shinners, Katherine) (Filed on 2/18/2016) (Entered: 02/18/2016)
160 Supplemental Brief re 120 MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 120 ) (Varian, Robert) (Filed on 2/18/2016) (Entered: 02/18/2016)
161 NOTICE by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia re 120 MOTION for Summary Judgment NOTICE OF SUPPLEMENTAL AUTHORITY RELATING TO PENDING CROSS−MOTIONS FOR SUMMARY JUDGMENT (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Higgins, Trish) (Filed on 3/9/2016) (Entered: 03/09/2016)
162 STIPULATION WITH PROPOSED ORDER Regarding Substitution of Defendants' Expert Witness filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Ward, Brian) (Filed on 3/15/2016) (Entered: 03/15/2016)
163 STIPULATION AND ORDER re 162 STIPULATION WITH PROPOSED ORDER Regarding Substitution of Defendants' Expert Witness filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson (modified). Signed

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 29 of 44

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by Judge Edward M. Chen on 3/16/16. (bpf, COURT STAFF) (Filed on 3/16/2016) (Entered: 03/16/2016)
164 Joint Discovery Letter Brief filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Sallomi, Megan) (Filed on 3/16/2016) (Entered: 03/16/2016)
165 ORDER by Judge Edward M. Chen re 164 Discovery Letter Brief. (emclc1, COURT STAFF) (Filed on 3/17/2016) (Entered: 03/17/2016)
166 NOTICE by Jose Elizandro Astorga−Cervantes regarding challenge to confidentiality designations (Attachments: # 1 Declaration of Anglica H. Salceda, # 2 Exhibit 1.1, # 3 Exhibit 1.2, # 4 Exhibit 1.3, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5)(Salceda, Angelica) (Filed on 3/17/2016) (Entered: 03/17/2016)
167 ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 139 Defendants' Motion for Summary Judgment; and Denying 120 Plaintiffs' Motion for Summary Judgment.(emcsec, COURT STAFF) (Filed on 3/18/2016) (Entered: 03/18/2016)
Set/Reset Hearing Status Conference set for 3/23/2016 10:00 AM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. (bpf, COURT STAFF) (Filed on 3/18/2016) (Entered: 03/18/2016)
168 Administrative Motion to File Under Seal and Retain Confidentiality Designations filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Deborah Goodwin, # 2 Declaration of Katherine Shinners, # 3 Proposed Order, # 4 Redacted Version of Ex. M Part 1, # 5 Unredacted Version of Ex. M Part 1, # 6 Redacted Version of Ex. M Part 2, # 7 Unredacted Version of Ex. M Part 2, # 8 Redacted Version of Ex. M Part 3, # 9 Unredacted Version of Ex. M Part 3, # 10 Redacted Version of Ex. M Part 4, # 11 Unredacted Version of Ex. M Part 4)(Bowen, Jennifer) (Filed on 3/18/2016) (Entered: 03/18/2016)
169 EXHIBITS re 168 Administrative Motion to File Under Seal and Retain Confidentiality Designations filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Redacted Version of Berg Report, # 2 Unredacted Version of Berg Report, # 3 Yuva DSC00021, # 4 Yuba DSC00027, # 5 Yuba DSC00033, # 6 Yuba DSC00074, # 7 Yuba DSC00076, # 8 Yuba DSC00077, # 9 Yuba DSC00078, # 10 Yuba DSC00125)(Related document(s) 168 ) (Bowen, Jennifer) (Filed on 3/18/2016) (Entered: 03/18/2016)
170 EXHIBITS re 168 Administrative Motion to File Under Seal and Retain Confidentiality Designations filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Yuba DSC00132, # 2 Yuba DSC00229, # 3 Yuba DSC00244, # 4 Yuba DSC00247, # 5 Mesa Verde DSC00598, # 6 Mesa Verde DSC00600, # 7 Mesa Verde DSC00602, # 8 Mesa Verde DSC00604, # 9 Mesa Verde DSC00606, # 10 Mesa Verde DSC00607, # 11 Mesa Verde DSC00629, # 12 Mesa Verde DSC00633, # 13 Mesa Verde DSC00654, # 14 Mesa Verde DSC00663, # 15 Mesa Verde DSC00664)(Related document(s) 168 ) (Bowen, Jennifer) (Filed on 3/18/2016) (Entered: 03/18/2016)
171 EXHIBITS re 168 Administrative Motion to File Under Seal and Retain Confidentiality Designations filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Mesa Verde DSC00679, # 2 Mesa Verde DSC00694, # 3 Mesa Verde DSC00701, # 4 Mesa Verde DSC00703, # 5 Mesa Verde DSC00713, # 6 Mesa Verde DSC00724, # 7 Mesa Verde DSC00726, # 8 Mesa Verde DSC00740, # 9 Mesa Verde DSC00741, # 10 Mesa Verde DSC00754, # 11 Mesa Verde DSC00765, # 12 Mesa Verde DSC00766, # 13 Mesa Verde DSC00768, # 14 Mesa Verde DSC00783, # 15 Mesa Verde DSC00792)(Related document(s) 168 ) (Bowen, Jennifer) (Filed on 3/18/2016) (Entered: 03/18/2016)
172 NOTICE of Appearance by Christine Patricia Sun NOTICE OF APPEARANCE OF COUNSEL (Sun, Christine) (Filed on 3/21/2016) (Entered: 03/21/2016)

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173 STIPULATION WITH PROPOSED ORDER re 96 Case Management Scheduling Order,,,,, Set Deadlines/Hearings,,,, 167 Order on Motion for Summary Judgment, filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Bowen, Jennifer) (Filed on 3/21/2016) (Entered: 03/21/2016)
174 STIPULATION AND ORDER re 173 Case Management Scheduling Order. Signed by Judge Edward M. Chen on 3/21/16. (bpf, COURT STAFF) (Filed on 3/21/2016) (Entered: 03/21/2016)
175 MOTION for Reconsideration re 167 Order on Motion for Summary Judgment, Request for Leave to File filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Exhibit [Proposed] Motion for Reconsideration, # 2 Proposed Order)(Mass, Julia) (Filed on 3/22/2016) (Entered: 03/22/2016)
176 Administrative Motion to File Under Seal re Pltfs' Opposition to Defts' Admin Mot to Retain Confidentiality Designations filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Declaration of Julia Harumi Mass ISO Admin Mot to File Under Seal, # 2 Redacted Opposition to Defendants' Admin Mot to Retain Confidentiality, # 3 Unredacted Opposition to Defendants' Admin Mot to Retain Confidentiality, # 4 Proposed Order)(Mass, Julia) (Filed on 3/22/2016) (Entered: 03/22/2016)
177 MOTION to Unseal Document 169 Exhibits to an Administrative Motion to File Under Seal,, filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson, 168 Administrative Motion to File Under Seal and Retain Confidentiality Designations filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson, 171 Exhibits to an Administrative Motion to File Under Seal,,, filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson, 170 Exhibits to an Administrative Motion to File Under Seal,, filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson Plaintiffs' Opposition to Defendants' Admin MOT to Retain Confidentiality Designations filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Declaration Of Carl Takei ISO Plaintiffs' Opposition, # 2 Proposed Order)(Salceda, Angelica) (Filed on 3/22/2016) Modified on 3/31/2016 (bpf, COURT STAFF) −Opposition, not motion. (Entered: 03/22/2016)
178 Minute Entry for proceedings held before Edward M. Chen: Status Conference held on 3/23/2016.Total Time in Court 31 minutes. Court Reporter Name Pam Batalo. (bpf, COURT STAFF) (Date Filed: 3/23/2016) (Entered: 03/23/2016)
179 TRANSCRIPT ORDER for proceedings held on 03/23/2016 before Edward M. Chen by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia, for Court Reporter Pam Batalo. (Yee−Garcia, Alexis) (Filed on 3/23/2016) (Entered: 03/23/2016)
180 CERTIFICATE OF SERVICE by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia re 177 MOTION to Unseal Document 169 Exhibits to an Administrative Motion to File Under Seal,, filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson, 168 A PROOF OF SERVICE (Mass, Julia) (Filed on 3/23/2016) (Entered: 03/23/2016)
181 TRANSCRIPT ORDER for proceedings held on 3/23/2016 before Edward M. Chen by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, for Court Reporter Pam Batalo. (Shinners, Katherine) (Filed on 3/24/2016) (Entered: 03/24/2016)
182 ORDER by Judge Edward M. Chen granting 119 Administrative Motion to File Under Seal.(bpf, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)
183 ORDER by Judge Edward M. Chen granting 124 Administrative Motion to File Under Seal.(bpf, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)

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184 ORDER by Judge Edward M. Chen granting 130 Administrative Motion to File Under Seal.(bpf, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)
185 ORDER by Judge EDWARD M. CHEN granting 138 Administrative Motion to File Under Seal.(bpf, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)
186 ORDER by Judge EDWARD M. CHEN granting 146 Administrative Motion to File Under Seal.(bpf, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)
187 ORDER by Judge EDWARD M. CHEN granting 168 Administrative Motion to File Under Seal.(bpf, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)
188 ORDER by Judge EDWARD M. CHEN granting 176 Administrative Motion to File Under Seal.(bpf, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)
189 STIPULATION WITH PROPOSED ORDER re 165 Order on Discovery Letter Brief JOINT STIPULATION REGARDING SCHEDULE FOR J.H. DEPOSITION DESIGNATIONS; [PROPOSED] ORDER filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Salceda, Angelica) (Filed on 4/1/2016) (Entered: 04/01/2016)
190 STIPULATION AND ORDER (modified) re 189 re 165 Order on Discovery Letter Brief JOINT STIPULATION REGARDING SCHEDULE FOR J.H. DEPOSITION DESIGNATIONS; [PROPOSED] ORDER filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes. Signed by Judge Edward M. Chen on 4/4/16. (bpf, COURT STAFF) (Filed on 4/4/2016) (Entered: 04/04/2016)
191 STIPULATION WITH PROPOSED ORDER for Modification of Pretrial Deadlines filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Shinners, Katherine) (Filed on 4/5/2016) (Entered: 04/05/2016)
192 ORDER by Judge Edward M. Chen granting as modified 191 Stipulation re Modification of Pretrial Deadlines. (emclc1, COURT STAFF) (Filed on 4/6/2016) (Entered: 04/06/2016)
193 First MOTION in Limine filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Motion Hearing set for 4/19/2016 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 4/7/2016. (Attachments: # 1 Proposed Order)(Bingham, Lauren) (Filed on 4/7/2016) (Entered: 04/07/2016)
194 Second MOTION in Limine filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Motion Hearing set for 4/19/2016 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 4/7/2016. (Attachments: # 1 Proposed Order)(Bingham, Lauren) (Filed on 4/7/2016) (Entered: 04/07/2016)
195 Third MOTION in Limine filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Motion Hearing set for 4/19/2016 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 4/7/2016. (Attachments: # 1 Proposed Order)(Bingham, Lauren) (Filed on 4/7/2016) (Entered: 04/07/2016)
196 Fourth MOTION in Limine filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Motion Hearing set for 4/19/2016 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 4/7/2016. (Attachments: # 1 Proposed Order)(Bingham, Lauren) (Filed on 4/7/2016) (Entered: 04/07/2016)
197 Brief re 184 Order on Administrative Motion to File Under Seal, 182 Order on Administrative Motion to File Under Seal, 183 Order on Administrative Motion to File Under Seal PLAINTIFFS' UNREDACTED MOTION FOR SUMMARY ADJUDICATION AND SUPPORTING EXHIBITS, PER COURT'S ORDERS ON MOTIONS TO FILE UNDER SEAL filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy

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04/08/2016 04/08/2016 04/08/2016 04/11/2016
04/11/2016 04/11/2016 04/11/2016 04/11/2016

Neria−Garcia. (Attachments: # 1 Redacted Berg Decl Ex A, # 2 Redacted Ha Decl Ex A, # 3 Redacted Phillips Decl Ex H, # 4 Redacted Phillips Decl Ex L, # 5 Redacted Phillips Decl Ex M (1 of 2), # 6 Redacted Phillips Decl Ex M (2 of 2), # 7 Redacted Phillips Decl Ex O, # 8 Unredacted Levy Decl Ex A, # 9 Unsealed Phillips Decl Exs A−B, # 10 Unsealed Phillips Decl Ex C, # 11 Unsealed Phillips Decl Exs D−G, # 12 Unsealed Phillips Decl Exs I−K, # 13 Unsealed Phillips Decl Exs N, S−U, # 14 Unsealed Takei Decl Exs (1 of 6), *** # 15 *Document removed pursuant to 4/13/16 Order * Unsealed Takei Decl Exs (2 of 6), # 16 *Document removed pursuant to 4/13/16 Order * Unsealed Takei Decl Exs (3 of 6), # 17*Document removed pursuant to 4/13/16 Order * Unsealed Takei Decl Exs (4 of 6) DOCUMENTS LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** , # 18 Unsealed Takei Decl Exs (5 of 6), # 19 Unsealed Takei Decl Exs (6 of 6))(Related document(s) 184 , 182 , 183 ) (Varian, Robert) (Filed on 4/7/2016) Modified on 4/11/2016 (ewn, COURT STAFF). Modified on 4/14/2016 (slhS, COURT STAFF). (Entered: 04/07/2016)
198 Pretrial Conference Statement by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia JOINT PRETRIAL CONFERENCE STATEMENT. (Varian, Robert) (Filed on 4/7/2016) (Entered: 04/08/2016)
199 Appendix re 198 Pretrial Conference Statement APPENDICES 1−4 TO JOINT PRETRIAL CONFERENCE STATEMENT filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Appendix 1 − Joint Witness List, # 2 Appendix 2 − Joint Trial Exhibit List, # 3 Appendix 3 − Joint Written Discovery, # 4 Appendix 4 − Joint Depo Designations)(Related document(s) 198 ) (Varian, Robert) (Filed on 4/8/2016) (Entered: 04/08/2016)
200 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on March 27, 28 and April 5, 8, 2016. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 4/8/2016) (Entered: 04/08/2016)
201 ORDER re Trial Time and Witness Lists. Parties are to submit a revised witness list by Monday, April 11, 2016 at 5:00 p.m. Signed by Judge Edward M. Chen on 4/8/2016. (Entered: 04/08/2016)
202 ADMINISTRATIVE MOTION Remove Documents re 197 Brief Administrative Motion to Remove Incorrectly Filed Documents filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Responses due by 4/12/2016. (Varian, Robert) (Filed on 4/8/2016) (Entered: 04/08/2016)
203 CLERK'S NOTICE: On 4/14/2016 2:30 PM Pacific Time, Judge Ryu will convene a telephonic settlement conference with Defendants only. Defense counsel shall provide a call−in number, or shall call Judge Ryu at the appointed time once everyone else is on the line. By 10:00 AM Pacific Time on 4/13/2016 defense counsel shall email Judge Ryu with a list of all participants by name and title. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 4/11/2016) (Entered: 04/11/2016)
204 Proposed Findings of Fact by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement . (Shinners, Katherine) (Filed on 4/11/2016) (Entered: 04/11/2016)
205 TRIAL BRIEF for Defendants by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Shinners, Katherine) (Filed on 4/11/2016) (Entered: 04/11/2016)
206 Proposed Findings of Fact by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. (Mass, Julia) (Filed on 4/11/2016) (Entered: 04/11/2016)
207 TRIAL BRIEF by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Mass, Julia) (Filed on 4/11/2016) (Entered: 04/11/2016)

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04/11/2016 04/11/2016 04/11/2016 04/12/2016 04/12/2016
04/13/2016 04/14/2016
04/14/2016 04/14/2016 04/15/2016 04/15/2016

208 NOTICE of Appearance by Emily K Brown Pursuant to Civil L.R. 5−1(c)(2) (Brown, Emily) (Filed on 4/11/2016) (Entered: 04/11/2016)
209 Appendix re 198 Pretrial Conference Statement, 199 Appendix, Revised Pretrial Witness List filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 198 , 199 ) (Varian, Robert) (Filed on 4/11/2016) (Entered: 04/11/2016)
210 NOTICE by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement Joint Notice Regarding Confidential Exhibits (Shinners, Katherine) (Filed on 4/11/2016) (Entered: 04/11/2016)
211 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Telephonic settlement discussions held on 4/12/2016. Discussions to continue on previously scheduled phone call with defense on 4/14/2016 at 2:30 PM Pacific Time. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 4/12/2016) (Entered: 04/12/2016)
212 EXHIBITS re 183 Order on Administrative Motion to File Under Seal SELECTED EXHIBITS FROM C. TAKEI DECLARATION IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION, UNSEALED/REDACTED PER COURT'S ORDERS ON MOTIONS TO FILE UNDER SEAL filed byJose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Unsealed/Redacted Takei Decl Exs (2 of 6), # 2 Unsealed/Redacted Takei Decl Exs (3 of 6), # 3 Unsealed/Redacted Takei Decl Exs (4 of 6), # 4 Unsealed Takei Decl Exs (1 of 10), # 5 Unsealed Takei Decl Exs (2 of 10), # 6 Unsealed Takei Decl Exs (3 of 10), # 7 Unsealed Takei Decl Exs (4 of 10), # 8 Unsealed Takei Decl Exs (5 of 10), # 9 Unsealed Takei Decl Exs (6 of 10), # 10 Unsealed Takei Decl Exs (7 of 10), # 11 Unsealed Takei Decl Exs (8 of 10), # 12 Unsealed Takei Decl Exs (9 of 10), # 13 Unsealed Takei Decl Exs (10 of 10))(Related document(s) 183 ) (Varian, Robert) (Filed on 4/12/2016) (Entered: 04/12/2016)
213 ORDER by Judge Edward M. Chen granting 202 Administrative Motion to remove documents. (bpf, COURT STAFF) (Filed on 4/13/2016) (Entered: 04/13/2016)
214 Amended MOTION in Limine re: Defendants' Fourth Motion in Limine filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Motion Hearing set for 4/19/2016 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 4/7/2016. Replies due by 4/7/2016. (Shinners, Katherine) (Filed on 4/14/2016); (amending doc no 196 ) Modified on 4/15/2016 (slhS, COURT STAFF). (Entered: 04/14/2016)
215 RESPONSE (re 175 MOTION for Reconsideration re 167 Order on Motion for Summary Judgment, Request for Leave to File ) in Opposition to Motion for Reconsideration filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Shinners, Katherine) (Filed on 4/14/2016) (Entered: 04/14/2016)
216 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held with defense representatives on 4/14/2016. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 4/14/2016) (Entered: 04/15/2016)
217 Appendix re 198 Pretrial Conference Statement, 199 Appendix, Amended Appendix 4 filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Appendix 4 to Joint Pretrial Conference Statement − AMENDED)(Related document(s) 198 , 199 ) (Shinners, Katherine) (Filed on 4/15/2016) (Entered: 04/15/2016)
218 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further separate telephonic settlement discussions held on 4/15/2016. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 4/15/2016) (Entered: 04/15/2016)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 34 of 44

04/17/2016 04/18/2016 04/18/2016
04/18/2016
04/18/2016 04/18/2016 04/18/2016 04/20/2016

219 Appendix re 198 Pretrial Conference Statement, 199 Appendix, Supplement to Appendix 4 re: Pretrial Conference Statement filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 198 , 199 ) (Varian, Robert) (Filed on 4/17/2016) (Entered: 04/17/2016)
220 Appendix re 198 Pretrial Conference Statement, 199 Appendix, Supplement to Appendix 2: Consolidated Joint Trial Exhibit List filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 198 , 199 ) (Varian, Robert) (Filed on 4/18/2016) (Entered: 04/18/2016)
221 *** FILED IN ERROR. PLEASE DISREGARD. *** Sealed Transcript of Proceedings held on 3/23/16, before Judge Chen. Court Reporter Pamela A. Batalo, Telephone number 626−688−7509; pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing., Transcript of Proceedings held on 3/23/16, before Judge Chen. Court Reporter/Transcriber Pamela A. Batalo, telephone number 626−688−7509; pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 179 Transcript Order ) Redaction Request due 5/6/2016. Redacted Transcript Deadline set for 5/16/2016. Redaction Request due 5/9/2016. Redacted Transcript Deadline set for 5/19/2016. Release of Transcript Restriction set for 7/18/2016. (Related documents(s) 179 ) (Batalo, Pam) (Filed on 4/18/2016) Modified on 4/18/2016 (fff, COURT STAFF). (Entered: 04/18/2016)
222 Transcript of Proceedings held on 03/23/16, before Judge Chen. Court Reporter Pamela A. Batalo, telephone number 626−688−7509; pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 179 Transcript Order ) Redaction Request due 5/9/2016. Redacted Transcript Deadline set for 5/19/2016. Release of Transcript Restriction set for 7/18/2016. (Related documents(s) 179 ) (Batalo, Pam) (Filed on 4/18/2016) (Entered: 04/18/2016)
223 Appendix re 198 Pretrial Conference Statement, 199 Appendix, Amended Appendix 4 re: Pretrial Conference Statement filed byJose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Related document(s) 198 , 199 ) (Varian, Robert) (Filed on 4/18/2016) (Entered: 04/18/2016)
224 STIPULATION WITH PROPOSED ORDER Requesting Telephonic Appearance by Certain Counsel at Final Pretrial Conference filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Shinners, Katherine) (Filed on 4/18/2016) (Entered: 04/18/2016)
225 STIPULATION AND ORDER re 224 STIPULATION WITH PROPOSED ORDER Requesting Telephonic Appearance by Certain Counsel at Final Pretrial Conference filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson. Signed by Judge Edward M. Chen on 4/18/16. (bpf, COURT STAFF) (Filed on 4/18/2016) (Entered: 04/18/2016)
226 TRANSCRIPT ORDER for proceedings held on 04/19/2016 before Edward M. Chen by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia, for Court Reporter Belle Ball. (Varian, Robert) (Filed on 4/20/2016) (Entered: 04/20/2016)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 35 of 44

04/20/2016 04/21/2016 04/25/2016 04/25/2016 04/26/2016 04/26/2016 04/26/2016 04/26/2016 04/28/2016 04/29/2016
04/29/2016
05/02/2016

227 Minute Entry for proceedings held before Edward M. Chen: Pretrial Conference held on 4/19/2016.Total Time in Court 2 hours 53 minutes. Court Reporter Name Belle Ball. (bpf, COURT STAFF) (Date Filed: 4/20/2016) (Entered: 04/20/2016)
228 TRANSCRIPT ORDER for proceedings held on 4/19/2016 before Edward M. Chen by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, for Court Reporter Belle Ball. (Shinners, Katherine) (Filed on 4/21/2016) (Entered: 04/21/2016)
229 ORDER − FINAL PRETRIAL CONFERENCE ORDER. Signed by Judge Edward M. Chen on 4/25/2016. (emcsec, COURT STAFF) (Filed on 4/25/2016) (Entered: 04/25/2016)
230 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 4/25/2016. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 4/25/2016) (Entered: 04/26/2016)
231 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 4/26/2016. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 4/26/2016) (Entered: 04/26/2016)
232 NOTICE of Appearance by Colin A. Kisor US Department of Justice (Kisor, Colin) (Filed on 4/26/2016) (Entered: 04/26/2016)
233 First MOTION in Limine to Exclude Opinions by Defendants' Proffered Rebuttal Expert Witness Richard Bryce filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Responses due by 5/3/2016. (Varian, Robert) (Filed on 4/26/2016) (Entered: 04/26/2016)
234 Order Setting Further Settlement Conference: Further Settlement Conference set for 5/2/2016 10:00 AM before Magistrate Judge Donna M. Ryu. Signed by Magistrate Judge Donna M. Ryu on 4/26/16. (ig, COURT STAFF) (Filed on 4/26/2016) (Entered: 04/26/2016)
235 STIPULATION WITH PROPOSED ORDER REGARDING REDACTION OF WITNESS NAMES EXCEPT INITIALS filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Sallomi, Megan) (Filed on 4/28/2016) (Entered: 04/28/2016)
236 Transcript of Proceedings held on April 19, 2016, before Judge Edward M. Chen. Court Reporter Belle Ball, CSR, CRR, RDR, belle_ball@cand.uscourts.gov, telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 226 Transcript Order, 228 Transcript Order, ) Release of Transcript Restriction set for 7/28/2016. (Related documents(s) 226 , 228 ) (Ball, Belle) (Filed on 4/29/2016) (Entered: 04/29/2016)
237 Pretrial Conference Statement by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia Joint Supplemental Statement of Amended Undisputed Facts and Discovery and Deposition Designations. (Attachments: # 1 Appendix 3 − Amended Joint Written Discovery, # 2 Appendix 4 − Amended Joint Depo Designations)(Varian, Robert) (Filed on 4/29/2016) (Entered: 04/29/2016)
238 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Settlement Conference held on 5/2/2016. Plaintiff to circulate bullet points and proposals on non−discussed areas by 5/4/2016 at 1:00 p.m. Pacific. Parties to convene further settlement call on 5/5/2016 at 2:00 pm Pacific. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 5/2/2016) (Entered: 05/03/2016)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 36 of 44

05/03/2016 05/04/2016 05/04/2016 05/05/2016
05/06/2016 05/09/2016 05/10/2016 05/10/2016 05/11/2016
05/12/2016
05/13/2016 05/13/2016

239 RESPONSE (re 233 First MOTION in Limine to Exclude Opinions by Defendants' Proffered Rebuttal Expert Witness Richard Bryce ) filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Ward, Brian) (Filed on 5/3/2016) (Entered: 05/03/2016)
240 NOTICE of Appearance by Shannon Christine Leong (Leong, Shannon) (Filed on 5/4/2016) (Entered: 05/04/2016)
241 STIPULATION AND ORDER re 235 REGARDING REDACTION OF WITNESS NAMES EXCEPT INITIALS filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Jose Elizandro Astorga−Cervantes. Signed by Judge Edward M. Chen on 5/4/16. (bpfS, COURT STAFF) (Filed on 5/4/2016) (Entered: 05/04/2016)
242 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held. Defendants to make best efforts to circulate latest version of proposal by 12:00 noon Pacific Time on 5/6/16. Parties to convene follow−up conference call at 3:00 p.m. Pacific Time on 5/6/16. Judge Ryu will make best attempts to join call. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (igS, COURT STAFF) (Date Filed: 5/5/2016) (Entered: 05/06/2016)
243 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held. Parties have scheduled a follow−up phone call on 5/9/2016 at 11:00 a.m. Pacific Time. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 5/6/2016) (Entered: 05/06/2016)
244 Proposed Order regarding Request For Permission To Bring Equipment To Trial by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Brown, Emily) (Filed on 5/9/2016) (Entered: 05/09/2016)
245 ORDER re 244 to bring equipments filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Edgar Cornelio, Lourdes Hernandez−Trujillo, Jose Elizandro Astorga−Cervantes. Signed by Judge Edward M. Chen on 5/10/16. (bpfS, COURT STAFF) (Filed on 5/10/2016) (Entered: 05/10/2016)
246 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 5/10/2016. Judge Ryu to hold further discussions with defense counsel on 5/11/2016 at 8:30 am Pacific (ICE will convene the call). FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 5/10/2016) (Entered: 05/10/2016)
247 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 5/11/2016. Defense counsel to participate in a call with Judge Ryu on 5/12/2016 at 1:00 p.m. Pacific (ICE to provide call−in information). Total Time: 1 hour and 30 minutes. Court Reporter: Not Reported. For Plaintiffs: Julia Mass, Christine Sun, Carl Takei and David Fathi. For Defendants: Colin Kisor, Lauren Bingham, Katie Shinners, Brian Ward and Deborah Goodwin. (ofr, COURT STAFF) (Date Filed: 5/11/2016) (Entered: 05/12/2016)
248 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 5/12/2016. Parties shall respond to mediator's proposal by calling Judge Ryu at 510−637−1006 by no later than 11:00 a.m. Pacific Time on 5/13/2016. Total Time: 1 hour and 30 minutes. Court Reporter: Not Reported. For Plaintiffs: Julia Mass. For Defendants: Colin Kisor, Leon Fresco, William Peachey, Katherine Shinners, Lauren Bingham, Brian Ward, Robert Smith, Deborah Goodwin and Tae Johnson. (ofr, COURT STAFF) (Date Filed: 5/12/2016) (Entered: 05/12/2016)
249 ORDER Re Trial Schedule. Signed by Judge Edward M. Chen on 5/13/2016. (emcsec, COURT STAFF) (Filed on 5/13/2016) (Entered: 05/13/2016)
250 ORDER by Judge Edward M. Chen Denying 233 Plaintiffs' Motion in Limine Number One. (emcsec, COURT STAFF) (Filed on 5/13/2016) (Entered:

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05/13/2016
05/13/2016 05/16/2016

05/13/2016)
251 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 5/13/2016. Total Time: 2 hours and 30 minutes. Court Reporter: Not Reported. For Plaintiffs: Julia Mass. For Defendants: Colin Kisor, Rhea Ramlogan, Deborah Goodwin, Moira Skinner, Brian Ward, Katherine Shinners, William Peachey and Lauren Bingham. (ofr, COURT STAFF) (Date Filed: 5/13/2016) (Entered: 05/13/2016)
252 TRANSCRIPT ORDER for Daily Trial by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Brown, Emily) (Filed on 5/13/2016) (Entered: 05/13/2016)
253 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement calls held. The government will provide an update on Monday morning. (Total Time: 3 Hours) (Not Reported)

Plaintiff Attorney: Julia Mass.

Defendant Attorney: Colin Kisor.

05/16/2016

This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 5/16/2016) (Entered: 05/16/2016)
254 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 5/14/2016, 5/15/2016,5/16/2016. The parties reached agreement on all material terms of their settlement, including fees and costs. Their agreement needs to be reduced to a written settlement agreement, which then requires sign off by the agency and DOJ. Given the different decision makers' schedules, the parties agree that it is realistic to finish that process and submit a proposed schedule to Judge Chen for approval by June 1. The parties thus ask that the trial date be vacated or continued to allow them to complete this process. The court conferred with Judge Chen's chambers, and he will continue the trial date to a date to be determined in consultation with the parties.(Total Time: 8 Hours) (Not Reported)

Plaintiff Attorney: Julia Mass.

Defendant Attorney: Colin Kisor.

05/16/2016
05/16/2016 05/27/2016

This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 5/16/2016) (Entered: 05/16/2016)
255 Appendix re 199 Appendix, Defendants' Revised Appendix 4 to Joint Pretrial Conference Statement filed byTimothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Appendix Revised Defendants' Appendix 4 to Joint Pretrial Conference Statement)(Related document(s) 199 ) (Shinners, Katherine) (Filed on 5/16/2016) (Entered: 05/16/2016)
256 CLERK'S NOTICE Vacating trial starting 5/23/2016 through 6/13/2016. (cl, COURT STAFF) (Filed on 5/16/2016) (Entered: 05/16/2016)
257 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Further settlement communications Tuesday, May 24 through Friday, May 27, re drafting of settlement agreement and timing of motion for preliminary approval. (Total Time: 30 Minutes) (Not Reported)

Plaintiff Attorney: Carl Takei and Julia Mass.

Defendant Attorney: Colin Kisor, Lauren Bingham, Elizabeth Stevens and Katherine Shinners.

This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 5/27/2016) (Entered: 05/31/2016)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 38 of 44

06/01/2016 06/03/2016 06/06/2016 06/13/2016 06/13/2016
06/28/2016
06/28/2016 06/29/2016 06/30/2016

258 STIPULATION WITH PROPOSED ORDER re 254 Settlement Conference,,, filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Mass, Julia) (Filed on 6/1/2016) (Entered: 06/01/2016)
259 STIPULATION AND ORDER Motion for preliminary approval of settlement hearing set for 6/30/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Signed by Judge Edward M. Chen on 6/3/16. (bpf, COURT STAFF) (Filed on 6/3/2016) (Entered: 06/03/2016)
260 ORDER by Judge Edward M. Chen denying 175 Motion for Reconsideration re 175 MOTION for Reconsideration re 167 Order on Motion for Summary Judgment, Request for Leave to File filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Jose Elizandro Astorga−Cervantes. (bpfS, COURT STAFF) (Filed on 6/6/2016) (Entered: 06/06/2016)
261 MOTION to Appoint Counsel filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Declaration of Carl Takei ISO Administrative Motion to Appoint Class Counsel, # 2 Declaration of Marc Van Der Hout ISO Administrative Motion to Appoint Class Counsel, # 3 Proposed Order Granting Plaintiffs' Motion to Appoint Class Counsel)(Varian, Robert) (Filed on 6/13/2016) (Entered: 06/13/2016)
262 MOTION for Settlement Unopposed Notice of Motion and Motion for Preliminary Approval of Class Action Settlement filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Motion Hearing set for 6/30/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 6/27/2016. Replies due by 7/5/2016. (Attachments: # 1 Declaration of Julia Harumi Mass ISO Motion for Preliminary Approval of Class Action Settlement, # 2 Exhibit 1, # 3 Declaration of Jose Elizandro Astorga−Cervantes ISO Motion for Preliminary Approval of Class Action Settlement, # 4 Declaration of Audley Barrington Lyon Jr. ISO Motion for Preliminary Approval of Class Action Settlement, # 5 Declaration of Nancy Neria−Garcia ISO Motion for Preliminary Approval of Class Action Settlement, # 6 Proposed Order Preliminarily Approving Settlement)(Varian, Robert) (Filed on 6/13/2016) (Entered: 06/13/2016)
263 MOTION for Attorney Fees filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Responses due by 7/12/2016. Replies due by 7/19/2016. (Attachments: # 1 Declaration of Robert P. Varian In Support of Motion for Award of Reasonable Attorneys' Fees, # 2 Declaration of Julia Harumi Mass In Support of Motion for Award of Reasonable Attorneys' Fees, # 3 Declaration of Megan Sallomi In Support of Motion for Award of Reasonable Attorneys' Fees, # 4 Declaration of Carl Takei In Support of Motion for Award of Reasonable Attorneys' Fees, # 5 Proposed Order Approving Award of Attorneys' Fees)(Varian, Robert) (Filed on 6/28/2016) (Entered: 06/28/2016)
264 NOTICE of Appearance by Victor M. Mercado−Santana (Mercado−Santana, Victor) (Filed on 6/28/2016) (Entered: 06/28/2016)
265 Proposed Order re 263 MOTION for Attorney Fees Amended Proposed Order Approving Award of Attorneys' Fees by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Varian, Robert) (Filed on 6/29/2016) (Entered: 06/29/2016)
266 Minute Entry for proceedings held before Edward M. Chen: Motion Hearing held on 6/30/2016 re 261 MOTION to Appoint Counsel filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Jose Elizandro Astorga−Cervantes, and 262 MOTION for Preliminary Approval of Class Action Settlement filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Jose Elizandro Astorga−Cervantes. For the reasons stated on the record, both motions are granted. Court to issue order. The motion for attorney's fee will be rescheduled to the same time as the final approval of settlement hearing. Total Time in Court 4 minutes. Court Reporter Name Kathy Wyatt. Plaintiff Attorney Julia Mass and Megan Sallomi. Defendant Attorney Lauren Bingham and Victor Santana. This is a text only Minute Entry (bpfS, COURT STAFF) (Date Filed: 6/30/2016)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 39 of 44

07/01/2016 07/01/2016 07/12/2016 07/13/2016 08/22/2016 08/22/2016 08/27/2016
08/30/2016 08/30/2016
09/15/2016 09/16/2016

(Entered: 06/30/2016)
267 ORDER by Judge Edward M. Chen granting 262 Motion for Preliminary Approval of Settlement. Final approval hearing and attorney's fee motion hearing set for 9/29/16 at 1:30 p.m.(bpfS, COURT STAFF) (Filed on 7/1/2016) (Entered: 07/01/2016)
Set/Reset Deadlines as to 263 MOTION for Attorney Fees and Final Approval of Settlement hearing set for 9/29/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. (bpfS, COURT STAFF) (Filed on 7/1/2016) (Entered: 07/01/2016)
268 TRANSCRIPT ORDER for proceedings held on 6/30/2016 before Edward M. Chen by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, for Court Reporter Katherine Wyatt. (Bingham, Lauren) (Filed on 7/12/2016) (Entered: 07/12/2016)
269 OBJECTIONS to Proposed Settlement filed by Martha Olivia Magallanes Castro. (slhS, COURT STAFF) (Filed on 7/13/2016) (Additional attachment(s) added on 7/15/2016: # 1 Envelope) (slhS, COURT STAFF). (Entered: 07/15/2016)
270 ADMINISTRATIVE MOTION Court grant an extension of time. filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Responses due by 8/25/2016. (Salceda, Angelica) (Filed on 8/22/2016) (Entered: 08/22/2016)
271 ORDERING GRANTING 270 ADMINISTRATIVE MOTION FOR SCHEDULE FOR FILING MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT. Pursuant to stipulation and for good cause shown, Plaintiffs' Motion for Final Approval of Settlement Agreement shall be filed no later than 9/15/2016. Signed by Edward M. Chen on 8/22/2016. (afmS, COURT STAFF) (Filed on 8/22/2016) (Entered: 08/22/2016)
272 *** TRANSCRIPT FILED IN ERROR − SEE DOCKET #274 *** Transcript of Proceedings held on 6−30−16, before Judge Edward M. Chen. Court Reporter/Transcriber Kathy Wyatt, telephone number 925−212−5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 268 Transcript Order, ) Release of Transcript Restriction set for 11/25/2016. (Related documents(s) 268 ) (kpw, COURT STAFF) (Filed on 8/27/2016) Modified on 8/30/2016 (rjdS, COURT STAFF). (Entered: 08/27/2016)
273 NOTICE of Change In Counsel by Megan Elaine Sallomi (Sallomi, Megan) (Filed on 8/30/2016) (Entered: 08/30/2016)
274 Transcript of Proceedings held on 06/30/2016, before Judge Edward M. Chen. Court Reporter/Transcriber Kathy Wyatt, telephone number 925−212−5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing..Redaction Request due 9/20/2016. Redacted Transcript Deadline set for 9/30/2016. Release of Transcript Restriction set for 11/28/2016. (rjdS, COURT STAFF) (Filed on 8/30/2016) (Entered: 08/30/2016)
275 STIPULATION WITH PROPOSED ORDER filed by Timothy S. Aitken, Jeh Charles Johnson, John Sandweg, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Thomas A. Lee, # 2 Declaration of Dana Fishburn, # 3 Declaration of Robert J. Munoz, # 4 Declaration of Antone Drinkard)(Bingham, Lauren) (Filed on 9/15/2016) (Entered: 09/15/2016)
276 ORDER by Judge Edward M. Chen Granting 275 Stipulation to Continue Notice and Objections Period and Final Approval Hearing. (emcsec, COURT STAFF)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 40 of 44

09/16/2016 09/29/2016 10/12/2016 10/25/2016
10/31/2016
11/02/2016 11/14/2016 11/18/2016 11/18/2016 11/18/2016
11/18/2016 11/18/2016 11/21/2016

(Filed on 9/16/2016) (Entered: 09/16/2016)
Set/Reset Hearing − Re 276 Order on Stipulation to Continue Notice and Objections Period and 263 Final Approval Hearing. Motion Hearing set for 9/29/2016 01:30 PM has been CONTINUED to 11/17/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Judge Edward M. Chen. (emcsec, COURT STAFF) (Filed on 9/16/2016) (Entered: 09/16/2016)
277 OBJECTIONS to PROPOSED SETTLEMENT. By Esteban Hernandez (Attachments: # 1 Envelope)(aaa, COURT STAFF) (Filed on 9/29/2016) (Entered: 09/30/2016)
278 TRANSCRIPT ORDER for proceedings held on 06/30/2016 before Edward M. Chen by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia, for Court Reporter Katherine Wyatt. (Yee−Garcia, Alexis) (Filed on 10/12/2016) (Entered: 10/12/2016)
279 CLERK'S NOTICE resetting 263 MOTION for Attorney Fees and Final Approval of Settlement from 11/17/2016 to 11/18/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. The Court will post a notice in the Courtroom on 11/17/2016 to notify the public of the change. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpfS, COURT STAFF) (Filed on 10/25/2016) (Entered: 10/25/2016)
280 MOTION for Settlement filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. Motion Hearing set for 11/18/2016 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Edward M. Chen. Responses due by 11/14/2016. Replies due by 11/21/2016. (Attachments: # 1 Declaration of Julia Harumi Mass, # 2 Declaration of Cecilia Bermudez, # 3 Declaration of K. Downey, # 4 Declaration of T. Lee, # 5 Declaration of R. Munoz, # 6 Declaration of A. Drinkard, # 7 Declaration of D. Fishburn, # 8 Declaration of M. Sallomi, # 9 Declaration of F. Coughlin)(Salceda, Angelica) (Filed on 10/31/2016) (Entered: 10/31/2016)
281 Proposed Order re 280 MOTION for Settlement by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Salceda, Angelica) (Filed on 11/2/2016) (Entered: 11/02/2016)
282 NOTICE of Appearance by Elizabeth J. Stevens (Stevens, Elizabeth) (Filed on 11/14/2016) (Entered: 11/14/2016)
283 STIPULATION WITH PROPOSED ORDER Extending the Protective Order Governing Confidential and Highly Confidential Information filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Yee−Garcia, Alexis) (Filed on 11/18/2016) (Entered: 11/18/2016)
284 STIPULATION AND ORDER re 283 Extending the Protective Order Governing Confidential and Highly Confidential Information filed by Nancy Neria−Garcia, Audley Barrington Lyon, Jr., Jose Elizandro Astorga−Cervantes. Signed by Judge Edward M. Chen on 11/18/17. (bpfS, COURT STAFF) (Filed on 11/18/2016) (Entered: 11/18/2016)
285 Minute Entry for proceedings held before Edward M. Chen: Motion Hearing held on 11/18/2016 re 280 MOTION for Settlement and 263 MOTION for Attorney Fees . Granted. Court to issue order. Total Time in Court 8 minutes. Court Reporter Name JoAnn Bryce. (bpfS, COURT STAFF) (Date Filed: 11/18/2016) (Entered: 11/18/2016)
286 ORDER by Judge Edward M. Chen 280 for Final Approval of Class Action Settlement Agreement. (emcsec, COURT STAFF) (Filed on 11/18/2016) (Entered: 11/18/2016)
287 ORDER by Judge Edward M. Chen 263 Approving Award of Attorneys' Fees. (emcsec, COURT STAFF) (Filed on 11/18/2016) (Entered: 11/18/2016)
288 TRANSCRIPT ORDER for proceedings held on 11/18/2016 before Edward M. Chen by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia, for Court Reporter Jo Ann Bryce. (Yee−Garcia, Alexis) (Filed on 11/21/2016) (Entered: 11/21/2016)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 41 of 44

12/02/2016
09/19/2018 10/15/2018 04/23/2019 04/23/2019 10/29/2019 10/31/2019 11/01/2019 11/01/2019 11/05/2019 11/08/2019 11/13/2019
11/19/2019

289 Transcript of Proceedings held on 11/18/16, before Judge Edward M. Chen. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 288 Transcript Order, ) Release of Transcript Restriction set for 3/2/2017. (Related documents(s) 288 ) (Bryce, Joann) (Filed on 12/2/2016) (Entered: 12/02/2016)
290 NOTICE of Appearance by Sean Connor Riordan (Riordan, Sean) (Filed on 9/19/2018) (Entered: 09/19/2018)
291 NOTICE by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia of Withdrawal of Counsel for Julia Harumi Mass (Riordan, Sean) (Filed on 10/15/2018) (Entered: 10/15/2018)
292 STIPULATION WITH PROPOSED ORDER Extending Settlement Agreement filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Salceda, Angelica) (Filed on 4/23/2019) (Entered: 04/23/2019)
293 Order by Judge Edward M. Chen granting 292 Joint Stipulation Extending Settlement Agreement.(afmS, COURT STAFF) (Filed on 4/23/2019) (Entered: 04/23/2019)
294 Letter from Yekaterina Reyzis . (Attachments: # 1 Supplement Settlement Agreement and Release)(Wetmore, Derek) (Filed on 10/29/2019) (Main Document 294 replaced on 11/7/2019) (wsnS, COURT STAFF). (Attachment 1 replaced on 11/7/2019) (wsnS, COURT STAFF). (Entered: 10/29/2019)
295 ***TEXT ONLY ENTRY REMOVED PER ORDER # 298 . *** CLERK'S NOTICE. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 10/31/2019) Modified on 11/7/2019 (napS, COURT STAFF). (Entered: 10/31/2019)
296 NOTICE of Appearance by Dhruman Y. Sampat (Sampat, Dhruman) (Filed on 11/1/2019) (Entered: 11/01/2019)
297 Proposed Order Stipulated Administrative Motion to Strike and Delete ECF No. 294, 294−1 and 295 by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Salceda, Angelica) (Filed on 11/1/2019) Modified on 11/5/2019 (afmS, COURT STAFF). (Entered: 11/01/2019)
298 Order by Judge Edward M. Chen granting 297 Stipulation to Strike and Delete ECF No. 294 , [294−1] and 295 .(afmS, COURT STAFF) (Filed on 11/5/2019) (Entered: 11/05/2019)
300 DOCUMENT RESTRICTED TO CASE PARTICIPANTS ONLY: Minute Order (Attachments: # 1 Certificate/Proof of Service − please ignore, hard copies will not be served since case participants can view this restricted document)(ig, COURT STAFF) (Filed on 11/8/2019) Modified on 11/13/2019 (ig, COURT STAFF). (Entered: 11/08/2019)
301 CLERK'S NOTICE: Docket entry 300 has now been filed as a restricted document so only case participants can view it. The parties are instructed to immediately update the docket so that it reflects the current lawyers and remove any lawyers no longer associated with this case. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 11/13/2019) (Entered: 11/13/2019)
302 NOTICE of Change In Counsel by Derek Evan Wetmore (Wetmore, Derek) (Filed on 11/19/2019) (Entered: 11/19/2019)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 42 of 44

11/20/2019 11/20/2019 11/22/2019 12/05/2019 12/05/2019 12/09/2019 12/13/2019 12/16/2019 03/16/2020 03/16/2020 03/18/2020
03/18/2020
03/24/2020

303 MOTION for leave to appear in Pro Hac Vice Eunice Cho ( Filing fee $ 310, receipt number 0971−13907755.) Filing fee previously paid on 11/20/19 filed by Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Attachments: # 1 Certficate of Good Standing)(Cho, Eunice) (Filed on 11/20/2019) (Entered: 11/20/2019)
304 Order by Judge Edward M. Chen granting 303 Motion for Pro Hac Vice.(afmS, COURT STAFF) (Filed on 11/20/2019) (Entered: 11/20/2019)
305 NOTICE of Appearance by Yekaterina L Reyzis (Reyzis, Yekaterina) (Filed on 11/22/2019) (Entered: 11/22/2019)
306 DOCUMENT RESTRICTED TO CASE PARTICIPANTS ONLY: Minute Order. (ig, COURT STAFF) (Date Filed: 12/5/2019) (ig, COURT STAFF). (Entered: 12/06/2019)
Set/Reset Hearing re 306 (ig, COURT STAFF) (Filed on 12/5/2019). (Entered: 12/06/2019)
307 NOTICE of Appearance by Ariel Brianna Winawer Pursuant to Civil L.R. 5−1(C)(2) (Winawer, Ariel) (Filed on 12/9/2019) (Entered: 12/09/2019)
308 STIPULATION WITH PROPOSED ORDER re 306 Settlement Conference on December 5, 2019 Mediation filed by Jose Elizandro Astorga−Cervantes, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Wetmore, Derek) (Filed on 12/13/2019) (Entered: 12/13/2019)
309 ORDER by Magistrate Judge Donna M. Ryu granting 308 Stipulation. (ig, COURT STAFF) (Filed on 12/16/2019) (Entered: 12/16/2019)
310 DOCUMENT E−FILED UNDER SEAL (Clerk's Notice). (ig, COURT STAFF) (Filed on 3/16/2020) (Entered: 03/16/2020)
Set/Reset Hearing re 310 Document E−Filed Under Seal by Court Staff. (igS, COURT STAFF) (Filed on 3/16/2020) (Entered: 03/16/2020)
311 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Telephonic Settlement Conference held on 3/18/2020. Results: The court will convene a video settlement conference as scheduled on 3/24/2020 10:00 AM (defense counsel to confirm Skype video capability via email). Parties shall submit materials as discussed by no later than noon on 3/20/2020 to DMRsettlement@cand.uscourts.gov. FTR Time: Not Recorded For Plaintiffs: Angelica Salceda; Sean Riordan; Tedde Simon; and Derek Wetmore For Defendants: Lauren Bingham (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Date Filed: 3/18/2020) (Entered: 03/18/2020)
312 AMENDED Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Telephonic Settlement Conference held on 3/18/2020. Results: The court will convene a telephonic settlement conference as scheduled on 3/24/2020 11:30 AM. Parties shall submit materials as discussed by no later than noon on 3/20/2020 to DMRsettlement@cand.uscourts.gov. FTR Time: Not Recorded For Plaintiffs: Angelica Salceda; Sean Riordan; Tedde Simon; and Derek Wetmore For Defendants: Lauren Bingham (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Date Filed: 3/18/2020) (Entered: 03/23/2020)
313 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic mediation discussions held on 3/24/2020. Results: By 3/26/2020 Plaintiffs shall send Defendants a draft stipulation and proposed order regarding document production and a site visit, with a first document collection period to begin on 4/2/2020. By no later than 6/15/2020, the parties shall meet and confer in order to crystalize the issues for the next mediation session. The parties shall submit both served and confidential to Judge

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 43 of 44

03/24/2020 04/01/2020 04/01/2020 05/29/2020
06/23/2020
06/26/2020 06/29/2020

only mediation update letters by no later than 6/18/2020. Judge Ryu will convene a further in−person mediation on 6/23/2020. FTR Time: Not Recorded For Plaintiffs: Angelica Salceda; Sean Riordan; Tedde Simon; and Yekaterina Reyzis For Defendants: Lauren Bingham and Dhruman Sampat (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Date Filed: 3/24/2020) (Entered: 03/24/2020)
314 NOTICE OF FURTHER SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER: Settlement Conference set for 6/23/2020 10:00 AM before Magistrate Judge Donna M. Ryu. Signed by Magistrate Judge Donna M. Ryu on 3/24/2020. (ig, COURT STAFF) (Filed on 3/24/2020) (Entered: 03/24/2020)
315 STIPULATION WITH PROPOSED ORDER filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Salceda, Angelica) (Filed on 4/1/2020) (Entered: 04/01/2020)
316 ORDER by Magistrate Judge Donna M. Ryu granting 315 Stipulation. (ig, COURT STAFF) (Filed on 4/1/2020) (Entered: 04/02/2020)
317 ORDER re 314 : The further settlement conference set for 6/23/2020 10:00 AM will take place via Zoom video conference. The court will send out a Zoom videoconference invitation via email. For this reason, counsel must include email addresses for all participants (i.e., counsel, parties, party representatives, and insurance representatives) as part of the settlement conference submissions. All counsel must ensure that their participants have downloaded the Zoom application onto a device with a working camera and microphone. Counsel shall do a test run with all of their participants prior to the settlement conference to eliminate all equipment−based problems. Audio−only participation is prohibited. All participants must also have access to email and telephone throughout the settlement conference. Signed by Magistrate Judge Donna M. Ryu on 5/29/2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 5/29/2020) (Entered: 05/29/2020)
318 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further settlement conference held on 6/23/2020 via Zoom. RESULTS: The parties will file a stipulation and proposed order with agreements covering the next month for Judge Ryu's review. Judge Ryu will convene a further Zoom settlement conference of up to two hours on 7/30/2020 10:00 AM Pacific Time. The parties shall email exchanged updates to Judge Ryu by 7/27/2020 at DMRsettlement@cand.uscourts.gov. FTR Time: Not Recorded For Plaintiffs: Angelica Salceda; Sean Riordan; Tedde Simon; Yekaterina Reyzis; Derek Wetmore; and Ariel Winawer For Defendants: Lauren Bingham; Dhruman Sampat; Frances Simpkins; Polly Kaiser; John Trinidad; Nathan Lindsey; Kenneth Jager; Johnny Bailey; and Ismael Dominguez (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Date Filed: 6/23/2020) (Entered: 06/23/2020)
319 STIPULATION WITH PROPOSED ORDER re June 23, 2020 Settlement Conference filed by Jose Elizandro Astorga−Cervantes, Edgar Cornelio, Lourdes Hernandez−Trujillo, Audley Barrington Lyon, Jr, Nancy Neria−Garcia. (Salceda, Angelica) (Filed on 6/26/2020) (Entered: 06/26/2020)
320 ORDER by Magistrate Judge Donna M. Ryu granting 319 Stipulation re: 6/23/2020 Settlement Conference. (ig, COURT STAFF) (Filed on 6/29/2020) (Entered: 06/29/2020)

Case: 3:13-cv-5878 As of: 07/29/2020 12:27 PM PDT 44 of 44

07/02/2020

321 ORDER re [Docket No. 318] Further Settlement Conference: The court is in receipt of the parties' joint request for an extension of the deadline in submitting new updates to the court and to continue the further settlement conference. The request is granted. The further settlement conference via Zoom previously scheduled for 7/30/2020 10:00 AM Pacific Time has been continued to 8/12/2020 10:00 AM Pacific Time. The parties shall email exchanged updates to Judge Ryu by 8/7/2020 at DMRsettlement@cand.uscourts.gov. Signed by Magistrate Judge Donna M. Ryu on 7/2/2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 7/2/2020). (Entered: 07/02/2020)